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Cite as: [2014] IESC 1
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Judgment Title: F.X. -v- Clinical Director of the Central Mental Hospital Neutral Citation: [2014] IESC 01 Supreme Court Record Number: 315 & 318/12 High Court Record Number: 2012 1258 SS Date of Delivery: 23/01/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., McKechnie J. Judgment by: Denham C.J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT Appeals No. 315 & 318/12 Denham C.J. Murray J. Hardiman J. O’Donnell J. McKechnie J.
F.X. Applicant/Respondent and The Clinical Director of the Central Mental Hospital Appellant and The Director of Public Prosecutions Notice Party Judgment delivered on the 23rd day of January, 2014, by Denham C.J. Appeals 1. This is an appeal by the Clinical Director of the Central Mental Hospital, referred to as “the appellant”, from the judgment of the High Court (Hogan J.), delivered on the 3rd July, 2012, where it was held that the detention of F.X., the applicant/respondent, referred to as “the respondent”, was not in accordance with law.
2. There is also a cross appeal on behalf of the respondent from the order of the High Court (Hogan J.) made on the 8th July, 2012, granting a stay on the order for release. On the 8th July, 2012, Hogan J. held that the respondent be released at 5 p.m. on the 10th July, 2012. This short stay was said to be designed to enable the authorities to take such steps as they thought fit in the meantime to ensure that in advance of that time and date the respondent’s custody would henceforth be a regular and lawful one. 3. These appeals raise a number of issues regarding Article 40.4.2 of the Constitution of Ireland and the interpretation of s.4(5)(c) and s.4(6) of the Criminal Law (Insanity) Act, 2006, as amended. Background Facts 4. The respondent is alleged to have seriously assaulted a fellow patient at Tallaght Hospital on the 11th May, 2010.
5. The respondent was arrested and brought before Tallaght District Court on the 14th May, 2010, and charged pursuant to s. 4 of the Non-Fatal Offences Against the Person Act, 1997. 6. The respondent was initially remanded by the District Court to Cloverhill Prison. However, Dr. Moola certified that the respondent was suffering from a mental disorder for which he could not get appropriate care in Cloverhill Prison. 7. The respondent was transferred by the Governor to the Central Mental Hospital in accordance with s. 15 of the Criminal Law (Insanity) Act, 2006, referred to as “the Act of 2006”. 8. On the 10th June, 2010, the District Court remanded the respondent to the Circuit Criminal Court for the purpose of a fitness assessment in accordance with s. 4(4) of the Act of 2006. 9. The victim died from his injuries on the 11th January, 2011. 10. On the 14th October, 2011, the respondent was charged with murder and sent forward to the Central Criminal Court. 11. On the 4th November, 2011, the Mental Health (Criminal) Review Board, referred to as the “Review Board”, reviewed the respondent’s detention in the Central Mental Hospital and decided that he was appropriately detained there. 12. On the 26th March, 2012, the Central Criminal Court (Carney J.) held that the respondent was unfit to be tried. The Central Criminal Court ordered:- “THE COURT DOTH FIND pursuant to section 4(5)(c)(i) of the Criminal Law Insanity Act 2006 that the accused herein is unfit to be tried and is suffering from a mental disorder (within the meaning of the Act of 2001) and THE COURT DOTH FIND, having heard the evidence of an approved medical officer, that the accused F.X. is in need of in-patient care or treatment in a designated centre and THE COURT DOTH ORDER pursuant to section 4(5)(c)(i) of the Criminal Law Insanity Act 2006 (as amended by section 4 of the Criminal Law Insanity Act 2010) that the proceedings herein be and the same are hereby adjourned until further Order and that the accused F.X. be and is hereby committed to the Central Mental Hospital, being a designated centre pursuant to the said Criminal Law Insanity Act 2006 until an order is made under section 13 of the said Criminal Law (Insanity) Act, 2006 (as amended by section 7 of the Criminal Law Insanity Act, 2010).” 13. The Central Criminal Court made its decision having heard evidence from Dr. Brenda Wright, a Consultant Psychiatrist, who was called by the Director of Public Prosecutions, the notice party, referred to as “the DPP”. 14. Dr. Paul O’Connell, a Consultant Psychiatrist, attended the Central Criminal Court on behalf of the respondent, but he was not called to give evidence. There was no dispute between the respondent and the DPP on the evidence of Dr. Wright. 15. It was common case that the respondent was unfit to be tried and that he suffered from a mental disorder within the meaning of the Mental Health Act, 2001, referred to as “the Act of 2001”, and that he required treatment in the Central Mental Hospital. 16. On the 27th April, 2012, the Review Board reviewed the respondent’s detention. In the opinion of that Board the respondent continued to suffer from a mental disorder that required in-patient treatment in the Central Mental Hospital. The E.C. case 17. On the 5th April, 2012, after an inquiry under Article 40, the High Court (Hogan J.) delivered a judgment in E.C. v. The Clinical Director of the Central Mental Hospital [2012] IEHC 152. The High Court’s interpretation of s. 4 of the Act of 2006 in E.C. took a different view as to how the section was to be operated than that taken by the Central Criminal Court in this case.
18. After the decision of the High Court in E.C., this case was re-entered by the DPP before the Central Criminal Court (Carney J.) on the 24th May, 2012, for the purpose of informing the Court of the decision in E.C.. 19. On the 24th May, 2012, there was no specific request to the Central Criminal Court to vary or amend the earlier order or alternatively, to make a fresh order. However, counsel informed the Central Criminal Court that, in light of the E.C. decision, he considered it his duty to seek an Article 40 inquiry. Judge Carney told counsel that he was entitled to go to any serving judge of the High Court. He did not consider it appropriate that he would hear the inquiry. Application for an inquiry under Article 40 of the Constitution 20. On behalf of the respondent an application was made to the High Court (Hogan J.) on the 21st June, 2012, for an inquiry under Article 40.4.2 of the Constitution.
21. The High Court (Hogan J.) delivered a reserved judgment on the 3rd July, 2012, where it was held that the detention was not in accordance with law, and the matter was adjourned to the 6th July, 2012, pending further argument as to the appropriate remedy. 22. The case resumed on Friday 6th July, 2012, on which date the respondent’s counsel indicated that he would be opposing the application for a stay. There was legal argument on the issue of a stay. 23. The matter was adjourned to Sunday 8th July, 2012, at 7 p.m. when a further judgment was delivered in which the learned High Court judge ordered that the respondent must be released from the order of the Central Criminal Court made pursuant to s. 4(5)(c)(i) of the Act of 2006 on the 26th March, 2012, at 5 p.m. on Tuesday 10th July, 2012. It was stated that the delay was designed in line with the decision in J.H. [2007] 4 IR 242 namely, to enable the authorities to take such steps in the meantime as they think fit to ensure that from that time and date the respondent’s custody was henceforth regular and lawful. 24. On the 9th July, 2012, the DPP re-entered the matter before the Central Criminal Court (Carney J.). The Central Criminal Court referred the matter back to Hogan J. who indicated that, as he was not a nominated member of the Central Criminal Court, he was unable to make an order pursuant to the Act of 2006 in the proceedings brought by the DPP against the respondent. 25. The President of the High Court directed that the matter be listed before Sheehan J. 26. At that time counsel for the respondent appeared before the Supreme Court requesting an immediate appeal against the granting of a stay by Hogan J. The application was refused by this Court. 27. On the 9th and 10th July, 2012, Sheehan J. heard an application by the DPP seeking a committal of the respondent to the Central Mental Hospital pursuant to s. 4(6)(a) of the Act of 2006, so as to comply with the statutory process as determined by Hogan J. in his judgment in this case. The Central Criminal Court ordered on the 10th July, 2012:- “This matter coming into the list for mention on this day and AND THE COURT having heard the evidence tendered and the submissions on behalf of the respective parties including the evidence adduced of an approved medical officer in respect of F.X. in accordance with Section 4(6) (a) of the Criminal Law (Insanity) Act 2006 as amended DOTH ORDER that the accused F.X. be and is hereby ordered to be committed to a designated centre being The Central Mental Hospital, Dundrum, Dublin 14 pursuant to Section 4 (6) (a) (i) of the Criminal Law (Insanity) Act 2006 until the 16th day of July 2012 being a period of not more than 14 days AND THE COURT Doth Direct that during such period he be examined by an approved medical officer in accordance with section 4 (6) (a) (ii) of the Act and that the said approved medical officer shall report to the Court pursuant to Section 4 (6) (b) of the Act. Stand adjourned to the 16th day of July 2012.” 28. In other words, Sheehan J. made an order of committal of the respondent to the Central Mental Hospital pursuant to s. 4(6)(a) of the Act of 2006 until the 16th July, 2012. It was directed that the respondent be examined by an approved medical officer in accordance with s. 4(6)(a)(ii) of the Act of 2006, and that the said approved medical officer should report to the Court pursuant to s. 4(6)(b) of the Act of 2006 on the 16th July, 2012. 29. On the 16th July, 2012, the matter was returned to the Central Criminal Court (Carney J.) which heard evidence and received a report from Dr. Damien Mohan, Consultant Psychiatrist. Carney J. made an order pursuant to s. 4(5)(c)(i) of the Act of 2006, committing the respondent to the Central Mental Hospital pending further order of the Review Board under section 13. The order stated:- “THE MATTER coming on for trial of the issue of fitness to be tried pursuant to Section 4 (5) of the Criminal Law (Insanity) Act, 2006 (as amended by Section 4 of the Criminal Law Insanity Act, 2010) AND having heard the evidence adduced and the submissions made on behalf of the respective parties and having heard the evidence of an approved Medical Officer namely Dr. Damien Mohan THE COURT DOTH FIND, pursuant to Section 4(5)(c)(i) of the Criminal Law Insanity Act, 2006 that the accused herein is unfit to be tried and is suffering from a mental disorder (within the meaning of the Mental Health Act of 2001) and THE COURT DOTH FIND, having heard the evidence of an approved Medical Officer, that the accused F.X. is in need of in-patient care or treatment in a designated centre and THE COURT DOTH ORDER, pursuant to Section 4(5)(c)(i)of the Criminal Law Insanity Act, 2006 (as amended by Section 4 of the Criminal Law Insanity Act, 2010) that the proceedings herein be and the same are hereby adjourned until further Order and that the accused F.X. be and is hereby committed to The Central Mental Hospital, being a designated centre pursuant to the said Criminal Law (Insanity) Act, 2006 until an Order is made under Section 13 of the said Criminal Law (Insanity) Act, 2006 (as amended by Section 7 of the Criminal Law Insanity Act, 2010).” Grounds of Appeal of the Appellant 30. The appellant appealed against the order and judgment of the High Court (Hogan J.) of the 3rd July, 2012, on the grounds that the learned High Court judge had erred in law, or alternatively on a mixed question of law and fact, in holding:-
(i) That the High Court’s jurisdiction to conduct inquiry under Article 40.4.2 extends to considering orders for the detention made by the High Court, whether sitting as the Central Criminal Court or otherwise (subject to certain intrinsic limits); (ii) That the existence of the respondent’s right of appeal to the Court of Criminal Appeal against the Order of the Central Criminal Court does not preclude the respondent from applying in the alternative to the Court for an inquiry under Article 40.4.2; (iii) That the legal basis for the respondent’s custody at the time of the inquiry was the order of the Central Criminal Court of the 26th March, 2012; (iv) That the Order of the Central Criminal Court of the 26th March, 2012, was not superseded by the periodic and independent statutory reviews carried out by the Review Board pursuant to s.10, 11, 12 and 13, respectively, of the Act of 2006, as amended, in respect of the respondent’s detention as a patient for psychiatric treatment and care in the custody of the clinical director of the Central Mental Hospital; (v) That the determinations of the Review Board upon the conclusion of its periodic and independent statutory reviews not to order the discharge of the respondent from the Central Mental Hospital were not orders for the purposes of s.13 of the Act of 2006, as amended; (vi) That the determinations of the Review Board made pursuant to s. 13 of the Act of 2006, as amended, did not authorise the respondent’s continued detention as a patient in the Central Mental Hospital; (vii) That the Central Criminal Court cannot make an Order committing a person accused of a criminal offence for in-patient treatment and care into the custody of the Clinical Director of the Central Mental Hospital following upon a determination that such person is unfit to be tried, unless there has been a prior committal of that person into the custody of the Clinical Director of the Central Mental Hospital for a period of not more than 14 days during which period of time such person must be examined by a consultant psychiatrist prior to the making a valid order under s.4(5)(c)of the Act of 2006, as amended; (viii) That in proceedings before the Central Criminal Court where a determination is made by that Court that a person accused of a criminal offence is unfit to be tried and in circumstances where the said Court has heard sufficient evidence to the effect that the person is suffering from a mental disorder within the meaning of the Act of 2001 and requires in patient treatment in the Central Mental Hospital, the Court is required by the provisions of s.4(5)(c) of the Act of 2006, as amended, to adjourn its proceedings before committing the person to the Central Criminal Court for the purposes of receiving in-patient treatment; (ix) That following a determination that a person accused of a criminal offence is unfit to be tried the Central Criminal Court is required first to make an order under s.4(6)(a)(as amended) providing for the accused either to be detained for a 14 day period or that he or she attend the Central Mental Hospital as an out-patient within that 14 day period and to subsequently receive a further report from a consultant psychiatrist on the issues of mental capacity and the necessity for in-patient treatment pursuant to section 4(6)(b); (x) That the report Dr Brenda Wright, and dated the 23rd March, 2012 was not a report adduced pursuant to s.4(6) of the Act of 2006, as amended; (xi) That the learned trial judge did not, prior to making his order on the on the 26th March, 2012, consider the evidence of an approved medical officer adduced pursuant to s.4(6)(b) as the Court had not first made an order providing for the detention of the respondent at the Central Mental Hospital for an initial period of 14 days despite the fact that the respondent had been a patient in the Central Mental Hospital continuously since the 14th May, 2010; (xii) Further and/or in the alternative, that in circumstances where it is undisputed that the respondent’s mental health condition required his continued detention, treatment and care in the Central Mental Hospital, the learned trial judge erred in law, or in the alternative erred in a mixed question of law and fact, in holding that it was necessary for evidence to be adduced pursuant to section 4(6)(b); (xiii) Further and/or in the alternative, that in circumstances where it is undisputed that the respondent’s mental health condition required his continued detention, treatment and care in the Central Mental Hospital, the learned trial judge erred in law, or in the alternative erred in a mixed question of law and fact, in holding that it was not within his discretion to refuse the relief sought by the respondent at the inquiry; (xiv) That the respondent’s detention became unlawful after the initial fourteen day period of detention; (xv) That there was a failure (of jurisdiction) apparent on the face of the order of the Central Criminal Court of the 26th March, 2012. Grounds of cross appeal of the respondent 31. The respondent filed grounds of cross appeal as follows:-
(i) That the learned trial judge erred in law and in fact in granting a stay on the release of the respondent in circumstances where he had not been satisfied that the respondent was being detained in accordance with the law. (ii) That the learned trial judge erred in law in holding that he had jurisdiction to grant a stay on the release of the respondent in circumstances where he had not been satisfied that the respondent was being detained in accordance with law. (iii) That the learned trial judge erred in law in holding that he had jurisdiction to grant a stay on the release of the respondent, where he had not been satisfied that the respondent was being detained in accordance with the law, for the purpose of enabling, and in order to enable, the appellant (detainer) take steps in advance of the time set for his release to ensure that his custody continue henceforth in a regular and lawful manner. Submissions on behalf of the Appellant 32. Counsel on behalf of the appellant submitted that the practical effect of the decisions of the High Court on the 3rd July, 2012, and the 8th July, 2012, declaring the respondent’s detention as unlawful was to adjudicate on the legality of the order of the Central Criminal Court and that the High Court ought to have refused jurisdiction. It was submitted that the jurisdiction of the High Court to conduct an inquiry under Article 40.4.2 of the Constitution does not extend to orders for detention made by the High Court, whether sitting as the Central Criminal Court or otherwise.
33. In addition, it was submitted on behalf of the appellant that whilst a literal interpretation of s.4 of the Act of 2006 would require the Court to engage in a two-stage process, this requirement, however, would only arise in circumstances where limited medical evidence was available to the court when determining whether an accused person was fit to be tried. The appellant submitted that it could be argued that the adoption of a literal interpretation of the Act of 2006 leads to a futile or pointless result. The appellant submitted that whilst there may be circumstances where such a two-stage process would have a meaningful effect, that this did not apply in respect of the respondent. 34. The appellant submitted that there was abundance of undisputed reliable clinical evidence available before Carney J. at the fitness hearing on the 26th March, 2012, which enabled him to conclude that the person suffered from a mental disorder as defined by the Act of 2001, that it was highly unlikely that this diagnosis was going to change in the immediate short term future, and that he required treatment as an in-patient at the Central Mental Hospital. 35. It was submitted that the literalist approach to the section required that time and resources of the court and the mental health services be taken up with the empty exercise of adjourning a matter to facilitate the examination of the respondent and preparation of a report which was already before the Court. This, it was submitted, is an absurd outcome which not only was not intended by the Oireachtas, and also overlooks the fact that the respondent had not sought to be released in this case. 36. The appellant submitted that the primary purpose behind the requirements for committal under s.4(5) and s.4(6) of the Act of 2006 is the welfare of the patient and his need, or otherwise, for treatment in the Central Mental Hospital. It was submitted that the imposition of an inflexible mandatory requirement to adjourn the proceedings in order to seek a fresh report from a consultant psychiatrist, in circumstances where that evidence is already available to the court, is to seek to prioritise form over the welfare of the patient. 37. In the alternative, were this Court not to accept the construction argument advanced above, and were it to consider that there has been a breach of the requirements of the Act of 2006, it is suggested that the Court should nonetheless disregard this finding, in the absence of a breach of fundamental requirements. 38. The appellant submitted that the decision of the Review Board at its Fifth Review hearing, which occurred on 27th April, 2012, superseded the order of the Central Criminal Court dated the 26th March, 2012, as the basis for the detention of the respondent and remained the basis for the respondent’s detention until the next decision. It was submitted that the respondent ceased to be detained pursuant to the order of the Central Criminal Court when the Review Board had its fifth hearing, after which he was detained under s.13 of the Act of 2006 pursuant to a decision of the Review Board. Submissions on behalf of the Respondent 39. Counsel for the respondent made oral submissions stating that what was at issue was the constitutional right of a citizen not to be deprived of liberty save in due course of law and that the release of the respondent was sought, on his instructions. Counsel argued that this would be in the respondent’s best legal interest. He stated that simply because it was perceived by clinicians that it was in the respondent’s interest to be deprived of his liberty that that was not a basis for such an order. He did not dispute that the respondent had severe mental problems, and he took no issue with the medical evidence. Counsel confirmed that the application for an Article 40.4.2 inquiry was being made by the respondent and that he, counsel, was acting on his instructions. Counsel for the respondent informed the Court that the lawyers for the respondent had not thought it appropriate to address the issue of his capacity. Counsel informed the Court that the respondent said that he wanted an application brought as he believed he was unlawfully detained.
40. Counsel for the respondent submitted that the High Court does have jurisdiction to conduct an Article 40.4.2 inquiry in relation to an order of the High Court, whether sitting as the Central Criminal Court, or otherwise. It was submitted that if the Article 40.4.2 procedure could not be invoked in respect of orders of the Central Criminal Court, that this would lead to a situation in which those who are detained on foot of an order of the Central Criminal Court could not challenge the legality of their detention. Further, it was submitted that to find otherwise would be to preclude a large class of persons from the Article 40.4.2 remedy, and would create an inequality between those charged in the Circuit Court and those in the Central Criminal Court, as relief under Article 40.4.2 of the Constitution would be available to the former and not the latter. 41. It was submitted on behalf of the respondent that the wording of the legislation is clear and unambiguous. The Act of 2006 requires two distinct and separate judicial hearings. The respondent submitted that s. 4(5)(c) of the Act of 2006 requires that the Court having found an accused unfit to be tried, adjourn the proceedings until further order. It was submitted that an adjournment is the only mandatory consequence of a finding of unfitness. The respondent submitted that the legislation provides, separate to the initial fitness hearing, for a “liberty hearing” which requires the court to consider the evidence of an approved medical officer, from a designated centre, who has medically examined the accused and reported on whether that person requires in-patient or out-patient treatment at the designated centre. On foot of this report, it was submitted, a court could then order either in-patient treatment, out-patient treatment or make no order for treatment. 42. The respondent submitted that the Act of 2006 is penal in nature, and as a result the purposive approach urged by the appellant ought not to be adopted by the Court when interpreting same. It was submitted that the best interests of the accused, subject to the provisions of the Act of 2006, are best served by an observance of the statutory safeguards. Further, that should this Court find that the provisions of the Act of 2006 are paternalistic in nature, that this cannot prevent adherence to a statutorily required second liberty hearing. It was submitted that to adopt a paternalistic interpretation of the legislation, and failing to adjourn the proceedings and obtain an expert report pursuant to s.4(6)(b) of the Act of 2006, is to usurp the role of the Oireachtas. It was submitted that the clear purpose of the Act of 2006 is to hold two separate hearings, first a hearing as to the fitness of the accused to be tried and second, on foot of the report adduced pursuant to s. 4(6)(b), a separate hearing as to the liberty of the accused. 43. It was submitted on behalf of the respondent that the argument that the decisions of the Review Board supplant earlier decisions lacks foundation as there has been no “order made under section 13 or section 13A.” 44. The respondent submitted that the High Court judge erred in law in holding that the Court had jurisdiction to place a stay on the order for release of the respondent. It was submitted that the wording of the Constitution does not permit the High Court, once satisfied that an applicant is being unlawfully detained, to do anything other than direct the immediate release of that person. The respondent relied on authorities of this Court to the effect that the historical position was that it is inconsistent with the terms of the Constitution to place a stay on an order for release. It was submitted that the High Court judge in the instant case incorrectly interpreted the ratio of this Court in N v. HSE [2006] 4 IR 374 in finding that welfare considerations of the respondent permitted the High Court to place a stay on the order for release. Submissions on behalf of the Notice Party 45. The submissions of the Director of Public Prosecutions were largely akin to those of the appellant. The DPP submitted that it was not necessary for the Central Criminal Court to adjourn the fitness hearing in circumstances where there is no disagreement between the experts. It was submitted that such an interpretation may lead to results which are contrary to the purpose of the legislation. The DPP argued that the decision of the High Court failed to give weight to the inquisitorial nature of the fitness to be tried procedure. The DPP adopted the appellant’s submissions regarding the Act of 2006 and the necessity to give the legislation a purposive interpretation which permits the two-stage process to be compressed into one stage in such circumstances where the parties both consent to procedures to be adopted by the court and where the court already has all of the necessary evidence before it.
46. The DPP submitted that it was not the intention of the Oireachtas that an inadvertent error made in the process leading to the committal could be relied upon months, or even years, later to declare the committal void in circumstances where there is no contention as to whether or not the detained person requires the treatment which they are receiving. 47. It was submitted that the orders of the Review Board supersede the order of the Central Criminal Court, or in the alternative, supersede a procedural error in the making of the order of the Central Criminal Court. 48. It was submitted on behalf of the DPP that, in all of the circumstances of the case, the respondent was in lawful detention at all times and that the Article 40.4.2 application ought to have been refused by the High Court. 49. The DPP argued that should this Court find in the alternative, however, that the High Court was entitled to place a stay on the order for release. Issues arising for determination in this Appeal 51. It follows that the appeal raises the following issues for determination:-
(i) Whether the High Court had the jurisdiction to conduct an Article 40.4.2 inquiry into the lawfulness of a detention ordered by the Central Criminal Court. (ii) Whether the High Court, satisfied that the detention of the respondent was unlawful, was permitted to place a stay upon the order for release under Article 40.4.2 of the Constitution. (iii) Whether s.4(5)(c)(i) of Criminal Law (Insanity) Act 2006, as amended required the Central Criminal Court, once satisfied that the accused was unfit to be tried, to adjourn the proceedings in order to consider the evidence of an approved medical officer adduced pursuant to s.4(6)(b) of the Act of 2006. (iv) Whether the decision of the Review Board dated 27th April, 2012 replaced the order of the Central Criminal Court dated 26th March, 2012 as the basis of the respondent’s continued detention. Whether the High Court has jurisdiction to conduct an Article 40.4.2 inquiry into the lawfulness of a detention ordered by the Central Criminal Court 52. The right to personal liberty is a longstanding and, as acknowledged by this Court in The State (Quinn) v. Ryan [1965] 1 I.R. 70, it:-
“goes back a long way in the history of the law. Formerly it was said to have been enshrined in the Charter of Magna Carta, and received further statutory recognition in the Habeas Corpus Act of 1849, and had a prominent place in the Constitution of Saorstát Eireann, 1922, and, of course, now in our Constitution of 1937. Prior to the establishment of this State the way in which a person sought to enforce his right to liberty in the Courts was governed by procedure then in force.” 53. While the remedy of habeas corpus has deep roots in the common law, at issue in this case is the great remedy under Article 40.4 of the Constitution. Article 40.4 provides:- “1° No citizen shall be deprived of his personal liberty save in accordance with law. 2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may 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, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”
3° Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it. 4° The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in every other case, consist of one judge only. 54. Henchy J. described the operation of the Article 40.4.2 procedure in The State (Royle) v. Kelly [1974] I.R. 259, where he stated at p. 269:- “The mandatory provision in Article 40, s.4, sub-s.2, of the Constitution that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this context has ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the test is to ensure that the detainee must be released if-but only if- the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.” 55. The first issue arising for determination in this appeal is whether the High Court may grant an order pursuant to Article 40.4.2 of the Constitution in circumstances where the order under which the applicant is detained has been made by the Central Criminal Court, a court of equal jurisdiction. Traditional Approach 56. There was a traditional understanding under the common law that habeas corpus is not, except in exceptional circumstances, available to review the decision of a judge of co-ordinate jurisdiction: See Costello, The Law of Habeas Corpus in Ireland, Four Courts Press, 2006.
57. Traditionally, the common law habeas corpus did not run to co-equal courts. In Re Aylward (1860) ICLR 448 it was held by the Court of Common Pleas that it entertained “no doubt but that we should far transcend our authority, as Judges of the land, in assuming to ourselves the power of overruling a decision of the Court of the Queen’s Bench.” It was held that the Court of Common Pleas had no power to consider the proprietary of the decision of the Queen’s Bench. The above was quoted with approval by the Queen’s Bench Division in Re Aikin (1881) ICLR 50 in which it was held that:- “It should be remembered that the present case comes before it as a Division of the High Court of Justice, and there is a comity between the several Divisions of the High Court of Justice exercising co-ordinate jurisdiction which ought to lead us in the present case from questioning the procedure or practice of another Division.” Constitutional Remedy 58. However, at issue is the constitutional right to habeas corpus governed by Article 40.4.2 of the Constitution of Ireland. The wording of Article 40.4.2 of the Constitution is clear and unambiguous and grants to the High Court a broad jurisdiction.
59. While the issue of whether an inquiry under Article 40.4.2 may be taken against an order of the High Court, or the Central Criminal Court, has not been addressed expressly previously, the courts have on occasion granted an order of habeas corpus in circumstances where the order of detention was made by the High Court. 60. In The State (O.) v. O’Brien [1973] 1 I.R. 50, the applicant had been convicted of murder while a juvenile after a trial in the Central Criminal Court. The High Court (O’Keefe P.) directed the release of the applicant on the grounds that the sentence imposed was unlawful. This decision was subsequently appealed to the Supreme Court. Walsh J., upholding the decision of the High Court, held that “the learned President of the High Court was correct in directing the release of the applicant.” 61. In The State (McDonagh) v. Frawley [1978] I.R. 131 the prosecutor was convicted and sentenced by the Central Criminal Court. Although an application for an inquiry pursuant to Article 40.4.2 of the Constitution was dismissed by the High Court, and the subsequent appeal dismissed by this Court, O’Higgins C.J. stated at pp. 136 - 137 that:- “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 attached to his detention…. 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 inadvertently been exceeded. For example, if a judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for life, instead of a penal servitude for life as required by the statute, the resulting detention would be imposed technically without jurisdiction. But the prisoner would not be released under Article 40, s.4, for it could not be said that the detention was not ‘in accordance with the law’ in the sense indicated. In such a case the court would leave the matter of sentence to be rectified by the Court of Criminal Appeal; or it could remit the case to the court of trial for the imposition of the correct sentence.”
The application was refused on the basis of the valid warrant in execution of a sentence, and not on the basis that the High Court lacked jurisdiction to hear an Article 40.4.2 application in respect of an order of the Central Criminal Court. 62. Also, in O’Brien v. The Governor of Limerick Prison [1997] 2 I.L.R.M. 349, an application for habeas corpus was successful against a sentence imposed by the Central Criminal Court. 63. Brennan v. The Governor of Portlaoise Prison [2008] 3 IR 364 was relied upon by the appellant in its submissions to this Court. This case concerned five appeals in respect of five orders made by the High Court (Ó’Néill J.) refusing to grant an order for release under Article 40.4.2 of the Constitution. The Article 40.4.2 application was grounded on the basis that none of the applicants were lawfully brought before the Special Criminal Court and, as a result, the Special Criminal Court had no jurisdiction at any stage to deal with them. In particular, the appellant placed reliance upon the following passages at pp.381-384:- “No application was made under s. 29. Accordingly, the decision of the Court of Criminal Appeal was and is final and that finality is prescribed by statute. Since the jurisdictional issue was included in the grounds of appeal and the particular point on which Mr. O'Brien was successful in his case was considered and determined by the Court of Criminal Appeal, the finality of the decision clearly covers that issue. Indeed normally where the route of appeal rather than judicial review is pursued, the finality of the decision of the Court of Criminal Appeal will cover any potential ground of appeal including a jurisdictional point which could reasonably have been included in the appeal even if it was not. Interestingly, that seems to be the strong view of Mr. Kevin Costello as expressed in his excellent and helpful book The Law of Habeas Corpus in Ireland (Four Courts Press, 2006). In his treatment of the use of Article 40.4.2 as a means of post-conviction review at p. 210 he says the following:- ‘It is implicit in the appellate scheme created by the Courts of Justice Act 1924 that the legislative intention was that there be merely a single appeal to the Court of Criminal Appeal: instead of constituting a free-standing renewable right of appeal available throughout the entire post conviction period an application for leave to appeal must be based on an application submitted to the trial judge. It is unlikely that the legislature, if it intended there to be a continuous, free-standing right of appeal, would have restricted the facility of appeal to an application made to the trial judge (who might then be dead, or have retired)... A conviction may only be impeached on new grounds in the circumstances described in s. 2 of the Criminal Procedure Act 1993. The principle of finality under s. 29 would be subverted if a complaint could, notwithstanding a prior determination by the Court of Criminal Appeal, be submitted under Article 40.4.2.’ I believe that that statement of the law is correct subject to the proviso that there may be very exceptional cases where some fundamental jurisdictional defect is established in an Article 40 application which through nobody's fault had not been raised or considered in the appeal processes. I make that proviso partly in the context that the learned author criticises in no uncertain terms eight cited cases in which he claims the principle was breached by the High Court and/or the Supreme Court. I do not propose to analyse those cases except to say that, on my perusal of them, they for the most part appear to be distinguishable from this case. I am satisfied that in no sense could this case be regarded as an authority against the sound principles put forward by Mr. Costello [in The Law of Habeas Corpus in Ireland referred to above]. It follows therefore that I am of the view that the Article 40 application does not lie in this case, as the jurisdictional issues have already been determined to the point of statutory finality. In case there be any doubt, I should make it clear that nothing which I have said is intended in any way to question the well established jurisprudence clearly expressed in The State (McDonagh) v. Frawley [1978] I.R. 131 that in certain exceptional circumstances, but only in exceptional circumstances, will an Article 40 application lie in relation to post-conviction detention. Disgraceful prison conditions is the oft cited example of a situation where habeas corpus does lie.” 64. The above decision was made where an appeal to the Court of Criminal Appeal had already been exhausted. Hence, the reliance of Geoghegan J. on the academic commentary of Costello to the effect:- "It is implicit in the appellate scheme created by the Courts of Justice Act, 1924 that the legislative intention was that there be merely a single appeal to the Court of Criminal Appeal: instead of constituting a free-standing renewable right of appeal available throughout the entire post conviction period an application for leave to appeal must be based on an application submitted to the trial judge.” 65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach is to seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an application for judicial review may be the appropriate route to take. In such circumstances, where an order of the court does not show any invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not the appropriate approach. 66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless there has been some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court, with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a fundamental denial of justice, or a fundamental flaw, such as arose in The State (O.) v. O’Brien [1973] 1 I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court. 67. In Costello, the Law of Habeas Corpus in Ireland, it is stated that “The institutional precedence of the Court of Criminal Appeal over habeas corpus is long established.” (Four Courts Press, 2006, p. 207). In The State (Cannon) v Kavanagh [1937] I.R. 428, Maguire P. dismissed an application for habeas corpus where the applicant could appeal to the Court of Criminal Appeal. In the The People (A.G.) v. Edge (1942) 76 ILT & SJ 199, an application for habeas corpus by a prisoner convicted of the offence of kidnapping, which he subsequently established was not known to the law, was adjourned until the appeal in the case was determined by the Court of Criminal Appeal. In Kelleher v. The Governor of Portlaoise Prison (30th October, 1997, Hamilton, O’Flaherty, Murphy JJ.) while accepting that in exceptional circumstances the court could entertain a point under a complaint under Article 40.4.2 while there was an appeal pending, this Court, in an ex tempore decision, dismissed the application. It was stated:- “If there is any validity in the submissions made by [counsel for the applicant] in this regard the proper venue for the determination of these issues is the Court of Criminal Appeal which the [applicant] has already applied for leave to appeal against his conviction and sentence. It is submitted by [counsel for the applicant] that there are exceptional circumstances in the case which would justify this Court directing the High Court to conduct a full inquiry into the lawfulness of the detention… These are questions that occur regularly in the course of proceedings in the Criminal Courts and before the Court of Criminal Appeal and in my opinion there is nothing exceptional about the circumstances of this case.” 68. The existence of an appeal procedure capable of correcting errors is itself a part of the due course of law. In The State (McDonagh) v. Frawley [1978] I.R.131, O’Higgins C.J. observed that when a person is detained for execution of sentence after a conviction on indictment he is prima facie detained in accordance with law, and: “The stipulation in Article 40, 5.4, sub – 5.1, 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 default of fundamental requirements that the detention may be said to be wanting in due process of law.” 69. In cases involving detention under the Act of 2006, orders of detention may be subject to appeal under s.9 of the Act to the Court of Criminal Appeal which may consider the evidence and make any order which was open to the court of trial to make. 70. Consequently, the High Court has jurisdiction under Article 40.4.2 to inquire into the lawfulness of a detention ordered by the Central Criminal Court, subject to the limitations as set out above. Whether the High Court, satisfied that the detention of the respondent was unlawful, could place a stay upon the order for release under Article 40.4.2 of the Constitution. 71. The next issue is whether the High Court, satisfied that the detention of the respondent was unlawful, could place a stay upon the order for release under Article 40.4.2 of the Constitution.
72. There is well established jurisprudence that no stay could be put in place on an inquiry under Article 40.4.2. Walsh J. in The State (Browne) v. Feran [1967] 1 I.R. 147 considered the process under Article 40.4.2 as laid down by the Constitution at p. 166 and stated:- “All successful complaints or claims are followed by a court order implementing the decision which upholds the complaint or claim. Undoubtedly these constitutional provisions do not permit any qualification or stay upon the order for release, but that is something which does not justify writing in a provision to the effect that the decision on the question of the lawfulness of the detention cannot be the subject of an appeal.” (emphasis added) 73. The existence of a power of the court to place a stay on an order for release pursuant to Article 40.4.2 of the Constitution was also rejected in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550. In that case the prosecutor was not in court, for reasons associated with his physical health, at the time of the making of the order for release, and as a result was not immediately released. An application was made on behalf of the respondent for a stay on the order of release. Finlay C.J. stated at p.570 that:- “… having regard to the express obligation imposed by Article 40, s.4, sub-s.2 upon the High Court, unless satisfied as to the legality of the detention of a person seeking an inquiry under that Article to order his release, that it would be inconsistent with the Constitution for this Court to exercise any right to stay such an order …” 74. It was contended by the respondent, in the cross-appeal, that the ex tempore judgment of this Court in S.C. v. The Clinical Director Jonathan Swift Clinic James Hospital (5th December, 2008, Hardiman, Kearns, Finnegan JJ.) is an authority which “disposes of the issue” as to the legality of a stay on an order for release under Article 40.4.2 of the Constitution. In S.C. the applicant successfully appealed the decision of the High Court to grant a stay on the order for her release. However, in that case this Court emphasised that neither on appeal nor in the High Court was it disputed that the applicant had full capacity to institute the proceedings and to instruct her lawyers. Further, it relied upon the fact that there was no evidence, or even a suggestion, that the applicant was a danger to herself or to any other person. Thus, the Court held that it did not:- “…consider it necessary, in those circumstances, to decide whether or not there may be ever a stay on an order for release from psychiatric detention. It is sufficient to say firstly that the Trimbole decision suggests strongly that such release must be immediate and, secondly, that evidence which only goes as far as the medical evidence of which we have been informed could not conceivably form the basis for a continuation of a detention admitted to be unlawful.” (emphasis added) 75. However, this Court has found that it was inappropriate to make a simple order for release on foot of a successful application in N. v. Health Service Executive [2006] 4 IR 374. In that case the birth parents of a child, who was placed in the custody of the second and third respondents with a view to adoption, sought custody of the child by way of proceedings brought pursuant to Article 40.4.2 of the Constitution. Satisfied that the interests and welfare of the child required the child to be returned to the custody of her birth parents, the Court had regard to the issue of the immediate care and welfare of the child and considered it necessary “to address the form of the order which the court should make.” The Court did not consider it necessary, or appropriate, for it to make a simple order for release on foot of a successful application under Article 40.4.2 of the Constitution. 76. In N. v. HSE Murray C.J. stated at p.470 that the normal rule was that of immediate release and held that:- “A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for the release of the person concerned from the unlawful detention with no further order being necessary.” (emphasis added) He continued, however, to find that:- “In this case there are special circumstances, namely the welfare of a infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this court pursuant to Article 40….In my view the court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of very tender age, to make ancillary or interim orders concerning the immediate custody of such infant which are necessary in order to protect her rights and welfare pending effect being given to the substantive order of the court.” 77. In coming to this view, Murray C.J. referred to the constitutional duty upon the courts to, as far as practicable, vindicate the personal rights of the child. He held that where there is a transfer of custody of the infant, such as in N. v. HSE, the interests of the child required that the transfer takes place “in a manner and circumstances which, as far as practicable, protects that welfare so that any adverse effects on the child are obviated or minimised.” In the interests of the child, therefore, this Court in N. v. HSE made an interim order authorising the child to remain in the custody of the second and third named respondents. 78. The Constitution describes the procedure in Article 40.4.2, concluding:- “… and the High Court shall, upon the body of such person being produced before the Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.” 79. There is no provision in the Constitution for a stay. Consequently, any order, such as was made in N. v. HSE, is made in the process of controlling the release, for the purpose of protecting the person who is incapable of protecting themselves. Whether s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006, as amended, required the Central Criminal Court, once satisfied that the accused was unfit to be tried, to adjourn the proceedings in order to obtain the evidence of an approved medical officer adduced pursuant to s. 4(6)(b) of the Act of 2006 80. The next issue on this appeal is the interpretation of ss. 4(5)(c)(i) and 4(6)(b) of the Act of 2006.
81. The learned High Court judge (Hogan J.) held in his decision in F.X. v The Clinical Director of the Central Mental Hospital [2012] IEHC 271 on the question of statutory interpretation that:- “The present case is accordingly governed by s. 4(5)(c) of the Act of 2006 (as amended). Once Carney J. had determined that the [respondent] was unfit to be charged, he was obliged by virtue of this sub-section to adjourn the proceedings. The trial judge also had the option of either committing the [respondent] to either in-patient or out-patient care. 30. Where, as here, the [respondent] was committed to a course of in-patient treatment in the Central Mental Hospital, the trial judge is then required to consider "the evidence of an approved medical officer adduced pursuant to subsection 6(b)." Section 4(6)(b) requires the approved medical officer to prepare a report within a time period stipulated by the court on the question of whether the [respondent] is suffering from a medical disorder and is need of in-patient care or treatment. … 32. Section 4(5)(c)(i) of the Act of 2006 was amended by s. 4(e) of the Act of 2010 so that the reference in the former sub-section is now to s. 4(6)(b). What was the effect of this change and what was its purpose? It is not clear that this change has had any particularly significant effects. After all, the fact that s. 4(5)(c)(i) refers now to s. 4(6)(b) (as opposed to s. 4(6) simpliciter) cannot really be regarded as having effected any really significant change, not least given that s. 4(6)(b) refers back to s. 4(6)(a)("...the approved medical officer who examined the accused person pursuant to [s. 4(6)(a)(ii)]"), so that it would seem that s. 4(6)(b) cannot be operated if the court does not make an order under s. 4(6)(a) for either in-patient detention and subsequent assessment or for out-patient assessment. 33. If that is so, then this suggests that the object of the legislative change was largely for reasons of presentational clarity and accuracy. No evidence is capable of being adduced pursuant to s. 4(6)(a)- as distinct from s. 4(6)(b)- and by making a change which makes this clearer, the Oireachtas must therefore be understood as wishing to be more precise and accurate regarding the scope of the legislative references to the adducing of evidence in these circumstances. 34. This change nevertheless provides further evidence that the Oireachtas considered that this obligation was of some importance. If this were not so, one might ask why the Oireachtas went to the trouble which it did in order to put this matter beyond doubt. While one may readily accept that the Act of 2006 should be given a paternalistic interpretation (see, e.g., by analogy the comments of McGuinness J. in Gooden v. St. Otteran's Hospital [2005] 3 I.R. 617 and those of Kearns J. in EH v. Clinical Director of St. Vincent's Hospital [2009] IESC 46, [2009] 1 I.R. 774, albeit that these comments were made in respect of the Mental Health Act 2001 and its predecessor), one cannot effectively re-write key procedural safeguards prescribed by the Oireachtas under the guise of paternalism. 35. If we now return to the facts of the case, it is clear that Carney J. made an order on 26th March 2012 committing the [respondent] to the Central Mental Hospital pursuant to s. 4(5)(c)(i). To this end, Carney J. heard the evidence of an approved Medical Officer, Dr. Brenda Wright, prior to the making of the order. Dr. Wright confirmed in her evidence that the applicant was seriously disturbed and required treatment at the Central Mental Hospital. As I have already indicated, these findings are not in doubt and there is, one imagines, very little prospect that the [respondent] will quickly recover from such a grievous illness. 36. The fact remains, however, that Carney J. did not consider the evidence of an approved medical officer adduced pursuant to s. 4(6)(b), since this would have required the court to make an order providing for the detention of the [respondent] at the Central Mental Hospital for an initial period of 14 days (s. 4(6)(a)(i)), his examination there by Dr. Wright (s. 4(6)(a)(ii)) and the subsequent presentation of a report for the benefit of the Central Criminal Court (s. 4(6)(b)). In other words, what the Oireachtas had prescribed as a two stage process seems to have been compressed through inadvertence into a single stage.” (emphasis in original) 82. The High Court held that the Oireachtas had added a layer of protection for the benefit of an accused person found unfit to plead and had established core protections for vulnerable persons. The learned High Court judge acknowledged that in this case compliance with the two stage procedure would have been most unlikely to have altered the result. However, he held:- “43. In summary, therefore, I am left with the inescapable conclusion that the [respondent’s] detention became unlawful after the initial fourteen day period of detention, inasmuch as the section precludes the making of an order for indefinite detention in the Central Mental Hospital (subject to the making of an order by the Review Board under s. 13 or s. 13A) under s. 4(5)(c)(i) without the court first having heard the evidence of the approved medical officer adduced pursuant to s. 4(6)(b). This failure is apparent on the face of the order of the Central Criminal Court.” (emphasis in original) 83. I agree with the statutory interpretation given by the learned trial judge, and would affirm the judgment of the High Court on this aspect of the case. Whether the decision of the Review Board of the 27th April, 2012, replaced the order of the Central Criminal Court dated the 26th March, 2012, as the basis of the respondent’s continued detention 84. Both the appellant and the notice party made submissions that, notwithstanding any finding of the Court as to the validity of the order of the Central Criminal Court, that order had been superseded by the decision of the Fifth Review of the respondent’s detention by the Board on the 27th April, 2012. However, in essence, this application for an inquiry pursuant to Article 40.4.2 arises from the order of the Central Criminal Court on the 26th March, 2012, which has been superseded by subsequent orders of the Central Criminal Court. A considerable time has elapsed since then and, in all the circumstances of the case, it is neither necessary nor appropriate to address this issue. Decision 85. In this case, while counsel referred to the fact that the matter might be moot when seeking a date for the hearing, there was no legal argument on the issue of a moot appeal.
86. However, the claim under Article 40, and the cross appeal are moot as the orders of Hogan J. of the 3rd and the 8th July, 2012, were superseded by orders of Sheehan J. of the 10th July, 2012, and Carney J. of the 16th July, 2012 respectively. 87. In this appeal the issue as to the interpretation of the statutory powers under s. 4(6)(a)(i) and s. 4(6)(a)(ii) of the Act of 2006 had given rise to conflicting judgments in the High Court. Consequently, it was important that this conflict be resolved by the Court. 88. The Central Criminal Court on the 10th and 16th July, 2013, applied the two stage process described by Hogan J. in his judgment of the 3rd July, 2012, so no order is needed on this issue. 89. The Court raised concerns as to the appropriate action of counsel in taking instructions from a person whom it was accepted needed to be detained in the Central Mental Hospital, without addressing the issue of that person’s capacity. 90. In all the circumstances now pertaining, no issue of habeas corpus arises, thus no issue of a stay arises. Further, as the Central Criminal Court applied the two-stage process prescribed by Hogan J. when it made its decisions of the 10th and 16th July, 2012, no issue needs to be determined in relation to the earlier decision of the Central Criminal Court. Thus, I would dismiss the appeal and the cross appeal. | ||||||||||||||||