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Cite as: [2020] IESC 8

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THE SUPREME COURT

IN THE MATTER OF AN APPLICATION PURSUANT TO

Clarke C.J.

ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND

[Supreme Court Record No. 2018/121]

McKechnie J.

Dunne J.

Charleton J.

Irvine J.

BETWEEN

PATRICK RYAN

APPLICANT/APPELLANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

Judgment of Ms. Justice Dunne delivered on the 19th day of March 2020

Introduction

The issue that arises for consideration in this case is whether it is permissible to

dismiss an application for an inquiry pursuant to Article 40.4.2 of the Constitution on the

grounds that the application constitutes an abuse of process or whether the Court is

limited solely to the question of whether the detention of the applicant is in accordance

with law. In addition, the appellant was given leave in the Determination of this Court to

argue a second point, namely that the Court of Appeal erred in law in holding that,

notwithstanding some blurring of the lines between the exercise of the District Court’s

civil and criminal jurisdictions, there was no unfairness to the appellant in the conduct of

the proceedings giving rise to his detention, despite the complaints of his not being

informed of the criminal charge against him, not being asked how he wished to plead,

there being no hearing of the charge, there being no evidence led to support the charge,

there being no opportunity to challenge the evidence relied on in support of the charge,

there being no opportunity given to him to adduce evidence in his defence and the

existence of a situation where the District Court Judge who convicted and sentenced him

was the alleged victim of the crime the appellant had committed, in breach of the “nemo

judex in causa sua” principle.

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The Nature of the Proceedings

2. These proceedings concern an application for an inquiry pursuant to the provisions of

Article 40.4.2 of the Constitution which commenced at the direction of Noonan J. on 24th

February, 2017. Article 40.4.2 of the Constitution states:

“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. The remedy provided by Article 40.4.2 of the Constitution is the successor to the old writ

of habeas corpus and is contained in the section of the Constitution which deals with

fundamental rights. The scope of Article 40.4.2 extends beyond the situation of an

individual who is detained following a decision of a court but it is not necessary to

consider all of the circumstances in which an inquiry pursuant to Article 40.4.2 can be

initiated for the purposes of this case. It is relevant to note the terms in which Article

40.4.2 is expressed. As can be seen, once a complaint is made in relation to a person

whom it is alleged is being unlawfully detained, the High Court is obliged (“shall

forthwith”) to immediately embark on an inquiry into the complaint that the individual

concerned is unlawfully detained. The importance of the remedy provided for in Article

40.4.2 flows from Article 40.4.1 of the Constitution which states that:

“No citizen shall be deprived of his personal liberty save in accordance with law.”

4. It can be seen therefore that Article 40.4.2 provides a speedy mechanism to ensure that

if a complaint is made as to the lawfulness of an individual’s detention, the matter can be

inquired into and if it is found that the individual concerned is unlawfully detained then

the person concerned will be released immediately.

5. Given the fact that an application for an inquiry pursuant to Article 40.4.2 is made in

circumstances where it is alleged that an individual is being unlawfully detained, it is not

surprising that such applications are often made as a matter of urgency and this can lead

to a situation in which the commencement of such an application is not the subject of

strict requirements in relation to the procedures to be followed. This was noted by Finlay

C.J. in the case of McGlinchey v. Governor of Portlaoise Prison [1988] I.R. 671

(hereinafter “McGlinchey”) at page 701 saying of such an application, it is:

“. . . not subject to any special rules, and deals only with the question of the

legality of the detention of the person who applies. It is given such a simple and

uncomplicated procedure because it deals with an essential and vital matter, the

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liberty of the individual. It is therefore important that it should not be debased by

being used for purposes for which it was not intended.”

Likewise, Charleton J. in Kane v. The Governor of the Midlands Prison [2012] IEHC 511

commented at paragraph 2:

“…The Constitution is a law in itself as well as being the fundamental law of Ireland.

The entitlement to this procedure is not to be adjusted or abridged by any form of

rule which undermines the swift and direct right of anyone within the State to

challenge the legality of any apparent case of wrongful imprisonment or detention.

Therefore, on such an application the High Court may adopt such procedures as are

suitable to a proper enquiry into the issue of lawfulness of detention. Quite often,

the prison authorities will proceed to indicate why it is claimed detention is lawful

and such justification may be challenged by contrary evidence, by submission or by

cross-examination. If other procedures better suit the nature of the case, these

may be followed.”

6. Thus, the nature and importance of the remedy is such that it has been recognised that it

is not subject to strict procedural rules or regulations. Nevertheless, it is important to

emphasise that this valuable remedy should not be utilised when the matters at issue as

to the detention of the individual are more properly decided by judicial review, appeal or

where another appropriate mechanism such as an application for bail is available to the

individual.

7. The fact that the procedure by which an Article 40.4.2 inquiry can be initiated is flexible

and is not bound by any strict procedural rules or requirements does not mean that

certain basic standards can be ignored or do not apply. As an Article 40.4.2 application is

initiated by an ex parte application, the applicant has a duty of good faith to set out all

relevant factual and legal matters to the Court in making the application. Thus, as Kelly J.

explained in the case of Adams v Director of Public Prosecutions [2001] 2 ILRM 401 at p.

416:

“On any application made ex parte the utmost good faith must be observed, and

the Applicant is under a duty to make a full and fair disclosure of all the relevant

facts of which he knows, and where the supporting evidence contains material

misstatements of fact or the Applicant has failed to make sufficient or candid

disclosure, the ex parte order may be set aside on that very ground…The obligation

extends to counsel. There is an obligation on the part of counsel to draw the

judge’s attention to the relevant Rules, Acts or case law which might be germane to

his consideration. That is particularly so where such material would suggest that an

order of the type sought ought not to be made.”

8. As is observed in Delaney and McGrath on Civil Procedure (4th ed.) having referred to

that passage at para. 31-107:

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“If an applicant fails to comply with this obligation then, as discussed further below,

this may provide a basis for an application to set aside the grant of leave.”

The observations of Kelly J. were made in the context of applications for leave to apply for

judicial review. The fact that an application for an Article 40.4.2 inquiry is not the subject

of strict rules or procedures is clear but the question that arises in this appeal is whether

any consequences should follow in the case of a failure to comply with the duty of utmost

good faith in the context of an application for an inquiry pursuant to Article 40.4.2 of the

Constitution and if so, what those consequences should be.

Background

9. The background to this matter stems from proceedings which took place in the District

Court pursuant to the provisions of s. 6 of the Enforcement of Court Orders Act 1940

(“the Act of 1940”) as substituted by s. 2 of the Enforcement of Court Orders

(Amendment) Act 2009 (“the Act of 2009”). Previously, in 2013, Leixlip and District

Credit Union Limited (hereinafter referred to as the Credit Union) had obtained judgment

in the Circuit Court against the appellant (hereinafter referred to as Mr. Ryan). Mr. Ryan

failed to pay the amount of the judgment and the Credit Union sought an instalment

order. Ultimately, Mr. Ryan was required to attend before the District Court for an

examination as to his means but did not attend and thus failed to satisfy the court that he

was not able to pay the debt due in one sum or by instalments. As a result, an

instalment order was made against Mr. Ryan ordering him to pay the total sum due in

monthly instalments of €300 each. He did not appeal the making of that order and did

not make any payments on foot of the instalment order. As a result, the Credit Union

commenced proceedings pursuant to s. 6 of the Act of 1940 referred to previously. The

mechanism provided for under s. 6 of the Act of 1940 is set out in the judgment of

Noonan J. in this matter but briefly it provides that where a debtor has failed to comply

with an instalment order a creditor may apply for a summons directing the debtor to

appear before the District Court. It then sets out a number of orders that can be made

when the matter appears before the District Court including an order for the arrest and

imprisonment of the debtor for any period not exceeding three months. There are

limitations on the making of such an order and the Court, before doing so, must be

satisfied beyond reasonable doubt that the failure to comply with the instalment order is

not due to inability to pay but is the result of wilful refusal or culpable neglect and further

that the debtor has no goods which could be taken in execution under any process of the

court by which the judgment, order or decree for the debt was given. (See s. 6(8)).

Provision is made under the Act for the grant of legal aid to a debtor in such proceedings.

10. The summons pursuant to s. 6 of the Act of 1940 came before the District Court on the

12th July, 2016 and on three subsequent occasions. Transcripts of the digital audio

recording from the court were available in respect of the latter three dates. Ultimately, in

the course of the hearing before the District Court on the last of those occasions, the 21st

February, 2017, a warrant of committal was issued by the District Judge against Mr. Ryan

for contempt of court and it was executed. It states as follows:

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“The said person, namely, PATRICK RYAN has in open court wilfully insulted me +

refused to engage with the court committed a contempt of this court as follows:- by

(1) Contrary to (3) (section. 6 of the Summary Jurisdiction (Ireland) Amendment

Act, 1871)

AND WHEREAS I do now, at the said sitting and acting solely in execution of my

duties as such judge, hereby adjudge that the said person for that contempt be

committed to prison for the period of seven days,”

11. It is not necessary to set out in detail the interactions between Mr. Ryan and the District

Court Judge which led to the order being made committing him to prison for contempt.

The exchanges between Mr. Ryan and the District Court Judge are set out in detail in the

judgment of Noonan J. and I do not propose to repeat them here. Suffice it to say that

on the occasions when Mr. Ryan appeared before the District Court his behaviour was

uncooperative, he refused to answer questions put to him and repeated constantly a

number of pointless remarks, resorting to a series of meaningless mantras. He was

warned as to his behaviour on a number of occasions by the District Judge. On the 13th

September, 2016 when the matter was before the District Court, an order was in fact

made by the District Judge to the effect that there had been wilful contempt of the court

and that a warrant for his detention was to issue for Mr. Ryan to be held in contempt.

However, it would appear that that warrant was not executed. As Noonan J. observed in

his judgment at para 10 “(t)his seems to have been because there was no garda present

in court at the relevant time.”

12. It appears that the matter was then adjourned to the date in January 2017. On that

occasion the situation did not improve. Mr. Ryan continued to use the same mantras as

had previously been used by him and the District Judge sought to obtain a statement of

means from Mr. Ryan and adjourned matters for one further period of time in order to

allow Mr. Ryan to comply. On that occasion when the matter was being adjourned, the

District Judge stated as follows:

“Now, in the circumstances having regard to the difficulties which we experienced.

And insofar as I want to be 100% clear in all of this, I’m going to put the matter

back for a shorter period of time, for the respondent to produce a statement of

means so I can assess his capacity to pay. And I want that statement of means to

be available to this court in advance of the adjournment date and to the claimant’s

solicitors in advance.

And I will renew my warning that if a statement of means is not provided and if

there is not cooperation with the court on the next date, you are at risk, sir.

And therefore, I offer you the opportunity again, that if you decide to come to court

and continue with the kind of carry on that you did on the previous occasion you

should bring a solicitor with you. And because – and that solicitor will be granted

legal aid, so you have no excuse for not bringing one. But there will be

consequences upon the next day. Do I make myself very clear, sir?”

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Mr. Ryan responded by saying, “I don’t consent to this going ahead, there is no claimant

here”.

13. Counsel for the Credit Union on that occasion objected to the granting of a further

adjournment but the District Judge reiterated the fact that he was giving Mr. Ryan an

opportunity to obtain a solicitor and that he would grant legal aid to the applicant in that

regard. Hence, the matter was adjourned to the 21st February, 2017. As I have

outlined, it was following the hearing on that date that an order was made committing Mr.

Ryan to prison for contempt of court and pursuant to the provisions of s. 6 of the Act.

The judgments of the High Court and the Court of Appeal

14. Following the decision of the District Court, Mr. Ryan was imprisoned. The next event

that occurred was an application for an inquiry pursuant to Order 40.4.2 of the

Constitution of Ireland. That application was initiated at approximately 12.55 on the 24th

February, 2017 and as a result of the evidence before the High Court contained in an

affidavit sworn by the solicitor for Mr. Ryan, an inquiry was commenced by the High Court

and it was directed that the relevant parties be notified and that the respondent

(hereinafter referred to as the Governor) should certify in writing the grounds of the

detention of Mr. Ryan and the matter was directed to be returnable before the Court at

3pm that afternoon. Mr. Ryan was duly produced at 3pm and the Governor certified in

writing that Mr. Ryan was being held pursuant to a warrant of committal dated the 21st

February, 2017 which was exhibited by him. The warrant was in the terms referred to

previously.

15. The manner in which the inquiry proceeded before the High Court is summarised in the

judgment of the Court of Appeal at paragraph 4 onwards as follows:

“4. The initial basis on which an inquiry under Article 40.4.2 was requested, and indeed

granted, was an assertion on the appellant’s behalf by his solicitor that the

appellant had been incarcerated solely because he refused to accept the jurisdiction

of the court to hear a claim in a civil matter involving an amount of €38,000 that, in

his belief, exceeded the jurisdictional limit of the District Court. However, once the

High Court had agreed to open an inquiry, and senior and junior counsel were

retained on the appellant’s behalf, the number of complaints was greatly expanded

to include challenges to the validity of the warrant on the grounds that it was

duplicitous, failed to particularise the offence of which the appellant had been

convicted, and specified an offence unknown to the law. It was also sought to

challenge the lawfulness of the detention of the appellant within the four walls of

that inquiry on the grounds that he was denied fair procedures in the District Court.

In the latter regard it was alleged that he was not informed of the criminal charge

against him; that he was not asked how he wished to plead; that there had been no

hearing of the charge; that no evidence was led; that he was not allowed to

challenge the evidence relied on as supporting the charge; that he was not afforded

an opportunity to lead evidence in his defence, and; that the District Court judge

had acted as a judge in his own cause and had breached the maxim Nemo iudex in

causa sua. In addition, it was alleged that the statutory provision on foot of which

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the appellant had been convicted, namely s.6 of the Act of 1871, was both

unconstitutional and incompatible with Article 6 of the European Convention on

Human Rights, various European Union Directives and the Charter of Fundamental

Rights of the European Union.

5. The substantive inquiry proceeded over two days on the 3rd and the 7th of March

2017, at the end of which the High Court found the detention of the appellant to

have been lawful and dismissed the appellant’s claim for relief under Article 40.4.2

of the Constitution.”

16. It is apparent that once the initial application for an Article 40.4.2 inquiry had

commenced, the nature of the complaints made by Mr Ryan changed significantly.

Further, it is abundantly clear from the judgment of the High Court that the High Court

judge was unhappy with some of the averments relied on by Mr. Ryan and his

representatives in order to initiate the inquiry pursuant to Article 40.4.2 of the

Constitution. Reference was made in the first instance to the first affidavit sworn on

behalf of Mr. Ryan by his solicitor in which the following averments appear at para 5:

“I say that at the outset of proceedings the applicant indicated that he was taking

issue with the jurisdiction of the District Court, in particular because the amount

involved, that was the subject of the civil proceedings, was €38,000 and this

exceeded jurisdiction of the District Court. I say that the applicant indicated to the

Court that he was not consenting to the process on this basis.”

This was described by the trial judge as being entirely incorrect having regard to the

transcript of the hearings before the District Court. He then referred to further averments

in the affidavit of the solicitor where she stated:

“6. I say that the judge then requested a statement of means from Mr. Ryan and told

the applicant he would be jailed if he continued. I say the applicant asked if it was

a civil or criminal court and whether the court was going to sign the committal

order to which the judge replied, ‘the ink was dry on it already’.

7. I say that the judge did not offer the applicant legal representation and I say the

applicant was given no opportunity to purge his contempt and no hearing was

conducted in relation to the issue of contempt of court.”

As the trial judge observed, this description significantly misrepresents what occurred

before the District Court on the 21st February, 2017.

17. The solicitor in her affidavit said that she had been contacted by Mr. Ryan’s son in respect

of the matter and that he informed her of the information in the affidavit. She added that

the sole reason for Mr. Ryan being imprisoned for contempt was that he refused to accept

the jurisdiction of the court. Subsequently, following his release on bail, Mr. Ryan swore

an affidavit himself in which he averred to having read the grounding affidavit of his

solicitor and that he could verify the contents thereof. Again, the trial judge was critical

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of this in circumstances where Mr. Ryan was in a position to know that the facts deposed

to by his solicitor were not correct. Equally, the trial judge was very critical of the fact

that neither Mr. Ryan nor his solicitor referred to the fact that the proceedings had been

before the District Court on four separate occasions. Likewise, he was critical of the fact

that in his affidavit Mr. Ryan deposed as follows at para 8:

“8. I say that the judge then told me that he was locking me up for seven days for

contempt. He didn’t offer me an opportunity to consult with a solicitor. He did not

offer me an opportunity to purge my contempt.”

18. As the trial judge said, this was materially misleading. More information was provided to

the Court by means of a second affidavit sworn by Mr. Ryan’s solicitor which was then

followed by a third affidavit. From this more information emerged as to how instructions

were obtained in relation to Mr. Ryan and from whom. Ultimately, oral evidence was

heard from Mr. Ryan’s solicitor and from Mr. Ryan’s son.

19. The High Court went on to summarise the law in relation to Article 40.4.2 of the

Constitution. Having done so, the trial judge concluded that the application before the

Court on the “true facts as they emerged” was not appropriate for the Article 40.4.2

procedure. The Court observed at paragraph 49 of the judgment:

“49. As it was initially presented by the applicant’s solicitor, it was alleged that the sole

reason that the applicant was imprisoned was that he refused to accept the

jurisdiction of the District Court based on a claim for €38,000.00 which plainly

exceeded that jurisdiction. Therefore despite the fact that the warrant under

challenge was in my opinion regular on its face, the case was presented as one

involving such a fundamental denial of justice as to arguably warrant the

intervention of this Court pursuant to Article 40. As events transpired however,

these supposed facts were quite untrue and the applicant, whatever about his

solicitor, knew them to be untrue and did nothing to correct them when he had the

opportunity. On the contrary, as I have previously noted, he swore an affidavit

when he was at liberty and with the benefit of legal advice in which he verified that

the contents of the solicitor’s affidavit were true and refrained from any mention of

the many highly material events that occurred at the previous hearings.”

He then posed the question as to what extent, if any, could the Court refuse such relief on

any basis other than that the detention is lawful. Having considered a number of views

on this issue the High Court judge expressed the following view at paragraph 52 of his

judgment:

“52. I have little hesitation in concluding that the manner in which this matter was

brought before the court by the applicant constitutes a clear abuse of process for

the reasons I have already identified. It is of course well settled that any party

moving the court ex parte is bound by a duty of candour and utmost good faith

towards the court. I cannot see in principle why that duty ought not equally apply

in Article 40 applications. Accordingly, in my opinion, this application should be

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dismissed on this ground and further on the ground that it is not in any event

appropriate for the Article 40 procedure.”

The trial judge went on to consider whether if he was wrong in that conclusion it was

appropriate to find that the detention of Mr. Ryan was lawful or unlawful. Having

considered the issues raised in the course of the Article 40.4.2 proceedings he concluded

that the detention of the applicant was lawful.

20. The Court of Appeal in its judgment at paragraph 22 stated:

“22. There is a long standing debate concerning whether relief under Article 40 can be

refused on the grounds either that the application represents an abuse of the

process in itself, alternatively in the manner in which it is presented.”

Reference was made to the well-known book by Dr. Kevin Costello entitled “The Law of

Habeas Corpus in Ireland” (2006) (Four Courts Press: Dublin). Reference was also made

to a number of the authorities cited in Dr. Costello’s book. I will refer to these later. At

paragraph 33 onwards, the judgment continued as follows:

“33. It was unconscionable that the High Court was not informed by the appellant, or by

anybody on behalf of the appellant, that there had been multiple hearings before

the District Court; that the appellant had been repeatedly warned about his

behaviour; that he had been offered the opportunity to retain legal advice and told

he would be granted legal aid for that purpose; that he was told he was at risk of

imprisonment if he continued to behave as he was behaving; and that on a

previous occasion the District Judge had been disposed to find him in contempt and

that he had only avoided being incarcerated on that previous occasion due to the

non-availability of a member of An Garda Síochána to take him into custody.

34. The High Court judge was entirely justified in my opinion in arriving at the

conclusions specified in the passage from his judgment, as quoted at paragraph 16

above.

35. I am satisfied that the High Court judge had more than sufficient evidence to

conclude, and that he was correct in his conclusion, that this application for an

inquiry was brought in circumstances that were abusive of the process. He would

have been entitled for the protection of the Court’s process not to continue with the

inquiry in those circumstances and to dismiss the application without going further.

However, he did not in fact do so. Rather, having expressed the view that the

application should be dismissed on the grounds that it involved an attempt to

mislead the court and was therefore abusive of the court’s process, he proceeded

notwithstanding that that was his view to consider in any event the merits of the

application in case he was ‘wrong in reaching that conclusion’. His conclusion, ‘were

it necessary for me to express a view’, was that the detention of the appellant was

lawful.”

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21. In the circumstances, the Court of Appeal did not uphold those grounds of appeal which

related directly or indirectly to the abuse of process finding.

Discussion on the abuse of process issue

22. At the outset of this discussion, I think it is important to say that the facts of this matter

as disclosed in the course of the Article 40.4.2 hearing are disturbing. I appreciate the

fact that in circumstances where the liberty of an individual is at stake, who it is thought

has been wrongfully detained, it may be difficult to obtain clear and full instructions

directly from the individual concerned. That being so it is not unusual for the initial

affidavit grounding an application for an inquiry to be sworn by someone else who is in a

position to say what led to the detention. Here, the initial affidavit was sworn by Mr.

Ryan’s solicitor who was not present in court on the occasion when he was imprisoned.

As I have indicated, I understand that it may be difficult for a solicitor to get accurate and

reliable information as to what occurred which has led to an individual being imprisoned

when that solicitor was not present in court and has no clear instructions from anyone

who was in court but great care must be taken by any solicitor who initiates such an

inquiry to ensure that any affidavit sworn by them is accurate and sets out as fully and

carefully as possible the background to the matter. What was presented to the High

Court in this case to initiate the inquiry was far from accurate, did not set out the true

position and positively misrepresented what had occurred in the District Court. This led

to the finding by the High Court, upheld by the Court of Appeal, that there had been an

abuse of process on the part of Mr. Ryan.

23. To paraphrase the words of Finlay C.J. in McGlinchey referred to at the beginning of this

judgment, it is important that such an application is not debased by being used for

purposes for which it was not intended. It was certainly never intended that the High

Court should have been allowed to be materially misled as to what occurred in the District

Court on the initial application for an inquiry pursuant to Article 40.4.2. If nothing else,

these proceedings demonstrate the value of having digital audio recording (DAR)

available in order to find out what in fact occurred in Court leading to the detention of the

individual concerned. The transcripts of the three hearings before the District Court

painted an entirely different picture to that conveyed on affidavit by and on behalf of Mr.

Ryan. It must be borne in mind in this case that whatever deficiencies were exposed in

the affidavits of Mr. Ryan’s solicitor, those deficiencies were compounded by the failure of

Mr. Ryan to present a true and accurate account of what had occurred when he had the

opportunity to swear an affidavit as to the circumstances. Without the DAR, the High

Court would have been left with the impression that the District Court judge in this case

had behaved in a way which was in excess of his jurisdiction and a denial of Mr. Ryan’s

fundamental rights. In fact, the DAR demonstrates the great patience with which the

District judge dealt with the matter notwithstanding the way in which Mr. Ryan behaved

in court. I will return to this aspect of the matter later. However, in all the

circumstances, I have no difficulty in accepting that the manner in which this application

for an Article 40.4.2 inquiry was made amounted to a serious abuse of process which has

resulted in a considerable amount of time being taken up by the High Court in dealing

with this matter involving hearings on the 24th February, 2017, the 3rd March, 2017, the

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7th March, 2017 and the 27th March, 2017 and resulting in a written judgment of the

High Court delivered on the 3rd April, 2017, not to mention subsequent hearings on

appeal.

24. What follows from all of this? Is it appropriate on that basis to dismiss the proceedings as

an abuse of process? I have already alluded to the fact that if these were judicial review

proceedings as opposed to proceedings in relation to Article 40.4.2, there is a strong

possibility that an application could have been successfully made to set aside the grant of

leave. (See Adam v Director of Public Prosecutions referred to above). Alternatively, the

proceedings could have been dismissed as an abuse of process following a hearing. What

then of these proceedings which are commenced pursuant to Article 40.4.2 of the

Constitution? The essential point made on behalf of Mr. Ryan is that the nature of Article

40.4.2 is such that it imposes a duty on the High Court when an inquiry has been directed

to proceed with that inquiry and thus precludes the possibility of the High Court

dismissing the application as an abuse of process. It is contended that once an inquiry is

directed the High Court is bound to address the question at the heart of the inquiry,

namely whether the detention of the person concerned is lawful or not. The essential

point made is that the High Court cannot refuse to release a person whose detention is

unlawful by reason of the fact that that individual has abused the process of the court in

obtaining an inquiry pursuant to Article 40.4.2.

25. The High Court judge considered a number of authorities as to the circumstances in which

the Article 40.4.2 procedure can be invoked including Child and Family Agency v. McG and

J.C. [2017] IESC 9, [2017] 1 I.R. 1 and further considered a number of passages from

Costello, op. cit. at pages 100 to 104 in which some authorities were examined by the

author leading to a conclusion that even though as the High Court judge put it at para 50:

“…Traditionally the view has been taken that unlike judicial review, habeas corpus

is not a discretionary remedy. The detention is either lawful or not.”

The position is, as stated by Costello, not “absolute” (page 100). He said:

“The unqualified assertion that the remedy is non-discretionary is difficult to

reconcile with cases where the remedy has been withheld on the ground that the

applicant has been guilty of abuse of process, or where release has been denied on

the ground that the public welfare, or the welfare of the prisoner, might be

compromised by discharge.”

The author then cited a number of authorities to support that point of view. The Court of

Appeal considered this issue at paragraph 22 to 36 and again made reference to Costello.

The Court of Appeal observed:

“22. There is a long standing debate concerning whether relief under Article 40 can be

refused on the grounds either that the application represents an abuse of the

process in itself, alternatively in the manner in which it is presented. One school of

thought, whose most high profile advocate was perhaps the late Supreme Court

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judge, Walsh J, as expressed in The State (Aherne) v Cotter [1982] I.R. 188,

maintains that the proviso to Article 40.4.2 of the Constitution (‘unless satisfied

that he is being detained in accordance with law’) limits the jurisdiction to refuse

release to one ground only: namely where the High Court is satisfied that the

detention is in accordance with law. There is, however, a second school of thought

which maintains that a more flexible approach may be adopted and that relief may

be refused on extrinsic grounds in appropriate cases, albeit that this is a course of

action to be adopted very sparingly indeed.”

26. Not surprisingly, counsel on behalf of Mr. Ryan adhered to the first school of thought on

this issue and contended that on an application under Article 40.4.2, the Court on an

inquiry is limited to considering whether the detention of the person concerned is lawful

or not and if it is unlawful, the Court must release the individual.

27. As was pointed out by counsel on behalf of Mr. Ryan, the Court of Appeal agreed with the

approach of the High Court saying at paragraph 31 of its judgment:

“31. The Article 40.4.2 procedure has been entrusted to the High Court by the people of

Ireland, and although sui generis in terms of its constitutional pedigree and the

imperatives created by the Constitution, that procedure is a part of the High Court’s

process. It seems to me that the High Court must be entitled to act protect (sic) its

own process, ultimately in the interests of ensuring that it can effectively perform

the tasks entrusted to it by the Constitution, including the proper conduct of an

inquiry under Article 40.4.2 procedure (sic) where requested to do so. If it is to be

effective it is essential that public respect for, and trust and confidence in, the High

Court be maintained, so that when it acts it does so with the authority that comes

with enjoyment of that respect, trust and confidence. It would be inimical to that

idea of authoritative action by the High Court in vindication of the right to liberty

that it should be constrained from protecting its own process. I therefore agree with

the High Court judge’s observation that there is no reason why the duty of candour

and of uberrima fides that applies in other forms of litigation should not apply in

relation to applications under Article 40.4.2.”

The Court went on to conclude at paragraph 35:

“35.

. . . that the High Court judge had more than sufficient evidence to

conclude, and that he was correct in his conclusion, that this application for an

inquiry was brought in circumstances that were abusive of the process. He would

have been entitled for the protection of the Court’s process not to continue with the

inquiry in those circumstances and to dismiss the application without going further.

However, he did not in fact do so.”

28. As the Court of Appeal noted, the High Court judge went on to consider the matter

notwithstanding and reached the conclusion that the detention of the appellant was

lawful. I have absolutely no difficulty with the view of the High Court and that of the

Court of Appeal that the duty of candour and of uberrimae fides applicable in other forms

Page 13 ⇓

of litigation also applies to applications under Article 40.4.2. I appreciate the fact that, in

circumstances such as occurred in this particular case, it may be difficult for a solicitor or

anyone else making an application on behalf of an individual who has been detained to

gather the information together but it is one thing to have difficulty in painting a complete

picture and another thing entirely to engage in a process which results in a court being

seriously misled, as happened in this case. Whatever about Mr. Ryan’s solicitor who

initially acted on instructions from third parties, there is absolutely no excuse whatsoever

for Mr. Ryan to continue on a course of conduct which led to the swearing of an affidavit

verifying incorrect information contained in the first affidavit of his solicitor. He knew that

the picture presented in that affidavit was not correct, that it was misleading and a

significant misrepresentation of what had occurred in the District Court but nonetheless

he swore an affidavit verifying the facts set out in his solicitor’s affidavit. Having said

that, it is necessary to look at some of the authorities relied on by the High Court and the

Court of Appeal to come to a view as to whether such an abuse of process on its own was

sufficient to result in the dismissal of the application for an inquiry seeking the release of

the individual concerned on foot of such inquiry.

29. A number of authorities cited in the submissions on behalf of Mr. Ryan are worth

considering. Thus, in the case of Application of Michael Woods [1970] I.R. 154

(hereinafter referred to as “Application of Michael Woods”), the applicant in those

proceedings had made a number of previous applications which found that he was lawfully

detained. On a subsequent application the view was taken by the High Court that it no

longer had jurisdiction to entertain such an application given the previous conclusion that

he was lawfully detained. In his judgment in the appeal to the Supreme Court, Ó Dálaigh

C.J. stated at page 162 onwards:

“The President of the High Court has interpreted the Article as prohibiting a person

who is detained from seeking habeas corpus if he has made an earlier application

which has been rejected by the Supreme Court. The High Court, on receipt of a

complaint under Article 40, s. 4, sub-s. 2, of the Constitution, is required to order

the release of the person detained unless satisfied that he is being detained in

accordance with the law. The same duty rests on the Supreme Court. This means

that both courts are not confined to an examination of the illegality complained of

by the applicant but are required to be alert for other grounds which could render

the detention unlawful.

. . . But this will not preclude an applicant from later raising a new ground even

though that ground might have been, but was not, put forward on the first

application.

The principles which apply in litigation inter partes are not applicable in habeas

corpus. The duty which the court has under the Constitution of ordering the release

of a person, unless satisfied that he is lawfully detained, requires that the court

should entertain a complaint which bears on the question of the legality of the

detention - even though in earlier proceedings the applicant might have raised the

Page 14 ⇓

matter but did not do so. The duty of the Courts, to see that no one is deprived of

his personal liberty save in accordance with law, overrides considerations which are

valid in litigation inter partes. If, therefore, the applicant raised matters before the

President on this application which had not been ruled on a previous application -

and it is not clear from the documents before us whether such was the case or not -

the duty of the High Court under the Constitution was to examine such grounds and

say whether or not it was satisfied that the applicant was being detained in

accordance with law.”

30. The decision of the Supreme Court in the case of Caffrey v. Governor of Portlaoise Prison

[2012] IESC 4, [2012] 1 I.R. 637 (hereinafter referred to as “Caffrey”) was also referred

to. The applicant had been unsuccessful in seeking an order pursuant to Article 40.4.2.

The respondent cross-appealed by notice to vary on the basis that the High Court erred in

incorrectly holding that the applicant was not subject to waiver/estoppel in respect of the

claims he sought to advance. The appeal was refused but it was stated by Denham C.J.

at paragraph 33 as follows:

“33. As to the notice to vary, the High Court judge stated at pages 8 to 9: -

‘[9] What I do not believe can ever happen is that a prisoner, by his consent

incidental to the process whereby he is imprisoned, or by failing to take a

point as to jurisdiction at the appropriate time, or by apparently acquiescing

in the form of his detention, can render what is not in law a valid form of

imprisonment into a lawful detention. If a prisoner cannot be detained by a

court in accordance with law, then incidental aspects of consent,

acquiescence, or delay cannot make lawful what is unlawful. Nor would I

believe that the Court has any discretion akin to that exercised in judicial

review proceedings to refuse to make an order in habeas corpus proceedings.

There is only one issue in this kind of enquiry: is the prisoner lawfully

detained or not? That admits of only one answer where there is no legal

foundation to a sentence of imprisonment.’

I would affirm this approach by the High Court judge. The issue for the Court was

whether the applicant was lawfully detained or not. The applicant could not be

lawfully detained on the basis of his consent or acquiescence; it is a question of

law. However, I also agree that the issues were more properly matters for a

judicial review procedure. But, in the context of this appeal, in this Court, I would

not refuse to determine the matter in the circumstances of the case.”

31. Reference was also made in the written submissions to the decision in the case of

O’Farrell v. Governor of Portlaoise Prison [2016] IESC 37, [2016] 3 IR 619, a Supreme

Court decision, in which McKechnie J. in the course of his judgment which was one of the

judgments of the majority, stated at page 688

…Whilst I fully recognise and thoroughly agree that the underlying application in

this particular case is without personal or humanitarian merit, nonetheless the rule

Page 15 ⇓

of law must prevail. One's consent to an illegal detention cannot change its nature:

neither can one's objection to a lawful detention. Concepts such as those under

discussion cannot make lawful that which is unlawful. If detention is in accordance

with law, it is valid. If not, it is invalid.”

32. MacMenamin J. in the same case at page 737, para 277 also observed:

“277.

The consequence of the application of this principle, as the law stands,

is that a plea of waiver, consent or estoppel cannot assist the respondent.”

33. It seems to me that those cases are very strong authorities for the proposition that in an

application pursuant to Article 40.4.2, the role of the Court is to consider the question as

to whether or not the detention of the individual concerned is lawful or not. That would

appear to be so notwithstanding the actions of the individual concerned. Thus as is clear

from Caffrey the issue of waiver/estoppel will not preclude the Court from giving a

decision on whether or not someone’s detention is lawful or not. Equally, it is clear from

the Application of Michael Woods that the fact that someone has made numerous

applications and has not apparently brought forward all the grounds appropriate to

challenge his detention on a previous occasion does not mean that a court is not obliged

to consider the legality of his detention.

34. As mentioned previously, reliance was placed by the trial judge in the course of his

judgment on a quotation from Costello on the law of habeas corpus in Ireland at page 101

and 102 where the High Court judge quoted from Mr. Costello’s book at para 50 of the

judgment as follows:

“There is also a significant body of case law which can only be explained on the

basis that the release on Article 40.4.2 is not determined solely by reference to the

legality of the detention, and that release may be denied on extrinsic grounds. The

overriding constitutional interest which is most usually invoked is the integrity of

the administration of justice. Thus, the Supreme Court has held that where a

prisoner has not presented all available grounds of challenge in the one complaint,

but has been guilty of unjustifiably staggering complaints over a succession of

applications, an Article 40.4.2 enquiry may be dismissed. The High Court has

refused relief on Article 40.4.2 where the application is of a technical nature,

particularly where the circumstances, such as a long delay in raising the complaint,

suggests that there is something disingenuous about the character of the

complaint. The abuse of process rule was applied in The State (Byrne) v. Frawley a

case which involved a jurisdictional complaint of a higher order of seriousness to

that line of cases in which jurisdiction has conventionally been applied, and

misconduct of a lower level than is usually classified as abuse of process. Two days

after the complainant had been arraigned before a jury empanelled in accordance

with the Jury’s Act, 1927 the Supreme Court declared the 1927 Act

unconstitutional. Nonetheless the trial proceeded and the accused was convicted

before such an unconstitutionally empanelled jury. The Supreme Court declined to

proceed with a post-conviction Article 40.4.2 enquiry on the ground that since

Page 16 ⇓

neither at the trial nor in his grounds of appeal to the Court of Criminal Appeal, nor

in a subsequent appeal to the Supreme Court, had (presumably on the advice of his

legal advisors) the question of the constitutionality of the jury been raised. The

prisoner’s apparent acquiescence, it was held, had compromised his complaint. The

court, notwithstanding the relatively serious jurisdictional defect involved, refused

redress.”

35. To deal with the case of The State (Byrne) v. Frawley [1978] IR 326 first, I think that the

judgments of the Supreme Court delivered by O’Higgins C.J. and Henchy J., both of whom

agreed that the application pursuant to Article 40.4.2 should be dismissed, contain

nothing to suggest that the application in that case was an abuse of process or indeed

that abuse of process played a part in the dismissal of the application. O’Higgins C.J., in

his judgment, concluded as follows at page 342:

“In this case, as already indicated, no objection was raised by the prosecutor to the

composition of the jury panel or to the jury which was actually sworn to try him. At

the commencement of his trial on the 10th December, 1975, the decision in the de

Burca Case ([1976] I.R. 38.) had not been given by this Court. It could perhaps,

therefore, be said on his behalf that he could not at that stage have known what

the decision would be. On the continuance of his trial after the decision in the de

Burca Case. had been announced, both he and his counsel were fully alive to the

legal position; yet no objection was taken. Did the absence of such an objection at

that stage cure an invalidity and make constitutional an unconstitutional jury? I

think not. Neither the absence of objection nor established acquiescence could

achieve so remarkable a result. In my view, failure to raise any objection on the

resumption of the trial on the 17th December, 1975, is entirely irrelevant. The

prosecutor's trial was already proceeding at this stage and he had been given in

charge, without objection, to a jury of persons qualified under the law to try him.

Whatever his attitude might have been on the concluding day of his trial, it could

have no effect on the validity of that trial.

I am satisfied that the prosecutor was lawfully tried by a valid jury in accordance

with Article 38, s. 5, of the Constitution and, for that reason, I conclude that his

application for release under Article 40, s. 4, sub-s. 2, of the Constitution fails.”

At page 350, Henchy J. made the following comment:

“Because the prisoner freely and knowingly elected at his trial to accept the

empanelled jury as competent to try him, I consider that he is now precluded by

that election from claiming that the jury lacked constitutionality: . . . The

prisoner's approbation of the jury was affirmed by his failure to question its validity

when he formulated grounds of appeal against his conviction and sentence, and

when his application for leave to appeal was argued in the Court of Criminal Appeal.

It was not until some five months after his trial that he first put forward the

complaint that the jury had been formed unconstitutionally. Such a volte face is

impermissible. Having by his conduct led the Courts, the prosecution (who were

Page 17 ⇓

acting for the public at large) and the prison authorities to proceed on the footing

that he accepted without question the validity of the jury, the prisoner is not now

entitled to assert the contrary. The constitutional right to a jury drawn from a

representative pool existed for his benefit. Having knowingly elected not to claim

that right, it would be contrary to the due administration of justice under the

Constitution if he were to be allowed to raise that claim in the present proceedings

when, by deliberate choice, it was left unasserted at the trial and subsequently in

the Court of Criminal Appeal. What has been lost in the process of events is not the

right guaranteed by the Constitution but the prisoner's competence to lay claim to

it in the circumstances of this case.”

36. Accordingly what appears to me to emerge from the decision in that case is that the

Supreme Court refused to conclude that the detention of the prosecutor in that case was

unlawful in circumstances where he never challenged the validity of his trial in the course

of the trial or subsequently on appeal by reason of the grounds which led in another case

to the finding that the composition of the jury was unconstitutional. That is not the same

as saying that his application was refused because of an abuse of process in the

application for relief pursuant to Article 40.4.2. The prosecutor in that case had an

opportunity had he so wished to challenge the validity of his jury in the course of his trial

or at the very latest in the course of his appeal. There was a difference between

O’Higgins C.J. and Henchy J. on the issue as to whether the jury in that case was lawful

or unlawful but all of the members of the court were satisfied that in circumstances where

the prosecutor had made no challenge in the course of the trial to the competence of the

jury, he was precluded from doing so at a later stage. The point was that when the jury

was empanelled, it was apparently lawfully empanelled in accordance with the law then in

force. The legislation providing for the manner in which the jury was to be empanelled

was then struck down and it was open to the prosecutor to raise the issue as to the

validity of the composition of the jury but he did not do so. I find it difficult to view that

decision as being a decision that supports the proposition that abuse of process could

preclude an application for relief pursuant to Article 40.4.2. The point was that no

challenge was made to the competence of the jury and therefore the trial that followed

and resulted in the conviction of the prosecutor was a lawful trial and the point

subsequently raised in the Article 40.4.2 proceedings was not open to the prosecutor. It

is not an authority in my view for the proposition that abuse of process precluded him

from raising that point.

37. The issue of the retrospective effect of a finding of unconstitutionality arose in a later case

of A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 (hereinafter “A”).

There, in the appeal to the Supreme Court Geoghegan J. from p. 198 of his judgment

considered at length the case of The State (Byrne) v. Frawley saying at p. 200, para 288:

“288.

The appeal to the Supreme Court produced judgements of considerable

interest. It was unanimously held that the appeal should be dismissed. The majority

of the court consisting of Henchy, Griffin and Parke J.J., rejected the reasoning of

the divisional Court but held against the prosecutor on a narrower ground. The

Page 18 ⇓

minority consisting of O’Higgins C.J. and Kenny J. more or less upheld the

reasoning of the High Court.

289.

The leading judgement for the majority was delivered by Henchy J. In

strident terms, he rejected a view which is thought might have been implied in the

judgement of the divisional Court that even if the trial judge had personal

knowledge of de Burca v. Attorney General [1976] I.R. 38, he was not obliged to

deal with the jury issue unless it was raised before him by counsel and he also

strongly rejected the view that the empanelled jury could be considered a valid jury

on the grounds that each of them was eligible to be a juror. Henchy J came to the

conclusion, however, that he should assume that the Circuit Court Judge did not

know about de Burca v. Attorney General or at least did not know about it in any

sufficient detail. He concluded, partly on the basis that the same counsel had been

for the defence in each case, that a deliberate and informed decision was made to

allow the trial to proceed before a jury in circumstances where the defence knew of

de Burca v. Attorney General. Henchy J. considered that the prosecutor was

precluded by that election from claiming that the jury lacked constitutionality. In

arriving at that view, his opinion was reinforced by the lack of complaint in the

Court of Criminal Appeal. It was not until some five months after the trial that the

prosecutor first complained that the jury had been formed unconstitutionally. This

was impermissible in the view of Henchy J.…

291.

In conclusion, I am of the view that concluded proceedings whether they

be criminal or civil, based on an enactment subsequently found to be

unconstitutional, cannot normally be reopened. As I have already indicated, I am

prepared to accept that there may possibly be exceptions. But in general it cannot

be done. Nor as Murray C.J. and Hardiman J. have pointed out is there any

precedent for a collateral challenge of this kind. I am also firmly of the opinion that

if the law were otherwise there would be a grave danger that judges considering

the unconstitutionality or otherwise of enactments would be consciously or

unconsciously affected by the consequences, something which in the view of Walsh

J. and endorsed by O’Higgins C.J. should not happen.”

38. This case does not depend on a finding of unconstitutionality of legislation and whether

that finding can or should have retrospective effect. I have referred to the decision in The

State (Byrne) v. Frawley and the subsequent decision in A at some length simply because

of the suggestion that The State (Byrne) v. Frawley was an authority for the proposition

that abuse of process could result in a refusal of relief pursuant to Article 40.4.2. As I

have tried to make clear, that is not the case.

39. The other two cases referred to by Costello are decisions in a case of Re Gallagher, Irish

Times, 26 July 1983 and Re Thomas McDonagh, High Court, 24 November 1969. These

two cases are dealt with at pages 132 and 133 of Costello. It appears that in the

McDonagh case, there is a suggestion that multiple applications for relief might constitute

Page 19 ⇓

an abuse of process and there is an apparent quotation from Henchy J. which states as

follows:

“While it is understandable because of the special nature and purpose of habeas

corpus that more than one application may be made in respect of a particular

detention and that failure to state a particular complaint of unlawful detention in an

earlier application should not ipso facto, be a bar to raising it in a subsequent

application, I should have thought that where a person has been convicted and

sentenced to imprisonment, it could not be said that he will never, during his

imprisonment, be debarred from applying for habeas corpus notwithstanding how

many previous applications he has already made. The result would be litigiousness

and the process of the court would be abused.”

It was said that that view was adopted by the Supreme Court in the case of In re

Gallagher which also relied on a newspaper report. In that case according to Costello:

“The Supreme Court rejected the application on two alternative grounds: that the

Special Criminal Court judge was properly qualified, and secondly, that the

complainant was guilty of an abuse of process in not submitting this ground in the

previous Article 40.4.2 application.”

The newspaper report records Henchy J. as stating:

“This was not the first application Gallagher had made to be released on habeas

corpus. It was the view of the Court, enunciated in the past that a person seeking

habeas corpus should put forward all his grounds in his application and not hold

them over for the purpose of making subsequent applications. On that point alone,

the appeal should be dismissed. But the Court was prepared to hold that the

appeal was properly before it, and dismissed the appeal.”

Costello went on to observe:

“Gallagher strongly suggested that the duty to submit all current available grounds

in the same application now applies to habeas corpus (though the status of the

ruling may have been undermined by a series of subsequent assertions in both the

High and Supreme Courts repeating the doctrine that there is no limit on the

number of challenges which may be brought on Article 40.4.2).”

40. I would hesitate to place undue reliance on the quotations in relation to the

McDonagh/Gallagher line of argument that abuse of process of itself could lead to an

application pursuant to Article 40.4.2 being refused, given that all that is available are

quotations from newspaper reports. Both cases appear to have arisen following a trial

and conviction. In those circumstances, an application under Article 40.4.2 would have

had to show some fundamental unfairness in the trial process as otherwise it would be

difficult to imagine any problem with the lawfulness of the detention. Further, as Costello

Page 20 ⇓

himself acknowledged, the status of the Gallagher ruling is contradicted by subsequent

decisions.

41. In my view, the line of argument to the effect that abuse of process per se precludes

someone from obtaining their release from what would otherwise be unlawful detention

simply cannot stand. I do not think the line of authority based on the cases cited by

Costello supports that conclusion. Fundamentally, it seems to me to be as simple as this:

if an inquiry is initiated pursuant to Article 40.4.2 of the Constitution then the High Court

is under an obligation to proceed with the inquiry. If in the course of the inquiry it

transpires that the detention of the prosecutor is unlawful then the prosecutor must be

released. For the sake of argument, assume a situation in which the most egregious

untruths are told in the affidavit of a prosecutor seeking his release from detention

pursuant to Article 40.4.2. In the course of the inquiry, having clarified the facts of the

matter leading to the conclusion that the prosecutor has told a number of lies, without

which the inquiry would not have been initiated, but it transpires that the detention of the

prosecutor is in fact unlawful, could it be permissible to continue to hold that person in

what has been determined to be unlawful detention? Article 40.4.2 expressly states that

the Court shall “…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”. Thus, unless someone is

detained in accordance with the law he must be released.

42. There was some consideration in the course of the judgment of the High Court in this case

and indeed in the judgment of the Court of Appeal of the decision of this Court in the case

of Child and Family Agency v McG and JC [2017] IESC 9, [2017] 1 I.R. 1.That was a case

which arose in the context of the Child Care Act 1991 and in which the question of

whether or not Article 40.4.2 was the appropriate remedy to invoke in circumstances

where there was an allegation of a breach of fair procedures in the context of childcare

proceedings which resulted in the children of the prosecutors being removed from the

custody of their parents by means of interim care orders. The Supreme Court in that

case was very much focused on the appropriateness of the procedure in that context. At

paragraph 8 of his judgment (with which I agreed) O’Donnell J. said as follows:

“8. The remedy of an inquiry under Article 40 is the great constitutional remedy of the

right to liberty. It carries with it its history in the common law as the vindication of

the rule of law against arbitrary exercises of power. It is and remains the classic

remedy when a person's liberty is detained without any legal justification, or where

the justification offered, is plainly lacking. However the right it protects is a right

not to be deprived of liberty save in accordance with law. More difficult issues arise

when it is sought to justify detention by the production of a valid order which is

regular on its face, but which it is asserted is liable to be quashed because of some

defect in procedure. The High Court on an Article 40.4 inquiry does not have

jurisdiction to make any order other than release or to refuse release. It cannot for

example quash an order or direct the performance of a legal duty. Given the

importance of the remedy, and its power, I do not doubt that it is possible in a

Page 21 ⇓

fundamental case, for the High Court to as it were, ‘look through’ an otherwise

validly issued order, or at least an order which has not yet been quashed by a court

with jurisdiction to do so, and direct the release of the applicant.”

He went on to comment at paragraph 9:

“9. The writ of habeas corpus was an important method of ensuring legality of

detention, in the absence any other mechanism being provided by law.”

43. It follows therefore, it seems to me, that in circumstances where the Court is satisfied

that an individual is unlawfully detained then that individual should be released from

detention. That is so notwithstanding any issue that may arise as to the conduct of the

individual by which the inquiry was initiated or in the course of the inquiry. It does not

seem to me that it is permissible to refuse to order the release of an individual in unlawful

detention solely by reference to an abuse of the process of the courts engaged in by that

individual. Finally, none of this analysis precludes the possibility of a High Court judge

refusing an application for an inquiry where the application itself amounts to an abuse of

process. See AC and Ors. v Cork University Hospital and Ors. 2019 IESC 73 at para.400

where O’Malley J. observed, “However, it should be borne in mind that the judge who

receives a complaint is not bound to proceed to direct an inquiry if the complaint is

manifestly baseless.” However, once the inquiry is initiated, the lawfulness of the

detention must be considered and if unlawful, the prisoner must be released.

The second issue

44. The second issue concerns what has been described as the blurring of the lines between

the exercise of the District Court’s civil and criminal jurisdiction. Essentially the point

made on behalf of Mr. Ryan is that once the District judge decided that there was an issue

to be determined as to whether or not Mr. Ryan was in contempt of court, it was

necessary to inform him of the criminal charge against him, to hear the evidence against

him, for him to have an opportunity to challenge that evidence and for him to have the

opportunity to have legal representation. Insofar as the District judge had advised Mr.

Ryan to obtain legal representation and that legal aid would be available for that purpose

it was contended that this was not in the context of the contempt procedure but was in

fact for the purpose of the enforcement procedures.

45. It is further contended that the law on contempt as provided for in s. 6 of the Summary

Jurisdiction (Ireland) Amendment Act 1871 is imprecise and uncertain. Section 6 of that

Act provides as follows:

“6. If any person shall wilfully insult any justice or justices sitting in any court within

the police district of Dublin Metropolis, or shall commit any other contempt of such

court, it shall be lawful for such justice or justices, by any verbal order, either to

direct such person to be removed from such court, or to be taken into custody, and

at any time before the rising of such court by warrant to commit such person to

gaol for any period not exceeding seven days, or to fine such person in any sum not

exceeding forty shillings.”

Page 22 ⇓

46. In essence it is contended on behalf of Mr. Ryan that there are conflicting responsibilities

for a judge in cases of contempt in the face of the court and that these conflicts are in

breach of basic principles of constitutional natural justice. The complaint made is that

there was a want of fair procedures afforded to Mr. Ryan once the decision had been

taken by the District judge to deal with the matter as a contempt in the face of the court.

Reference was made in the course of the submissions to two recent decisions of this Court

both delivered by O’Donnell J. on 25th February 2019, namely Tracey v. District Judge

McCarthy [2019] IESC 14 and Walsh v. The Minister for Justice and Equality [2019] IESC 15,

(hereinafter referred to as “Tracey” and “Walsh”). I will refer to those decisions again

in due course. I think however it would be useful in the first instance to refer to the

observations of the trial judge in relation to these issues. At paragraph 53 of his

judgment, Noonan J. stated as follows:

“53. However, even if I were to be wrong in reaching that conclusion, I am satisfied that

there is no merit in the applicant’s submissions. Far from being denied fair

procedures, it seems to me that the District Judge went to considerable lengths to

ensure that the applicant was treated fairly. He was repeatedly warned about his

behaviour during successive hearings. He was fully aware that if that behaviour was

persisted in, it might result in his imprisonment not only because he was explicitly

told by the judge that he was at risk but he had in fact already been subject to an

unexecuted order of imprisonment for contempt. He was urged to retain a solicitor

and assured that legal aid would be provided to him for that purpose. He was

afforded every opportunity of complying with orders of the court previously made.

54. He ignored all of these matters and instead deliberately persisted in the same

obstructive and contemptuous behaviour knowing full well what the outcome was

likely to be. Indeed it seems to me likely that the applicant anticipated his own

imprisonment in circumstances where, irrespective of the issue of contempt in the

face of the court, he repeatedly refused to comply with orders of the court requiring

him to furnish a statement of means undoubtedly in the knowledge that this was

likely to result in the court concluding that his failure to comply with the instalment

order was not due to inability to pay but wilful refusal. It is notable that the

applicant’s supporters, some of whom were present during the Article 40

proceedings in court taking notes, appear to have known of the applicant’s

incarceration before any member of his family, perhaps because they like the

applicant had anticipated it.

55. When the outcome now complained of ensued, the applicant says that he was not

told of the charge against him or given any opportunity to get legal advice. The

basis for this contention seems to rest on the fact that what had gone before was

related to the District Court’s civil jurisdiction whereas it was the exercise of its

criminal jurisdiction that resulted in his imprisonment. While it may be true to an

extent to say that there may have been some blurring of the lines between the civil

and criminal jurisdiction being exercised by the District Judge, I am satisfied that

this has resulted in no unfairness to the applicant in reality.”

Page 23 ⇓

47. The Court of Appeal in its judgment dealt with this issue from paragraph 42 onwards.

Reference was made to the Law Reform Commission’s Consultation Report and Report on

Contempt of Court and to its later Issue Paper (2016) on Contempt of Court and other

offences and torts involving the administration of justice (LRC IP 10 – 2016). It was

noted at paragraph 50 of the judgment having recited a number of passages from the

2016 Issue Paper that what was at issue here was the statutory jurisdiction deriving from

s. 6 of the Act of 1871 and it was stated in paragraph 50 as follows:

“50. The statutory jurisdiction was applied in this case by the District Court judge in a

summary way and the appellant was immediately tried for his contempt in like

manner to how the common law power to commit for contempt in the face of the

court arising in other circumstances has heretofore been typically applied.”

The Court went on to review a number of authorities including Hammerton v Hammerton

[2007] EWCA Civ 465; and the High Court decision in the case of Tracey v District Judge

McCarthy [2008] IEHC 59 together with Kyprianou v Cyprus [2007] EHRR 27. At the

point in time when the matter was being considered by the Court of Appeal, the Supreme

Court had not given its decision on the substantive appeal in Tracey. The Governor

before the Court of Appeal had submitted that there was no want of fair procedures in the

course of the proceedings in this case. At paragraph 71 of its judgment it was stated as

follows:

“71. In all these circumstances the respondent submits there was no want of fair

procedures. I agree with this submission. The appellant knew exactly what he was

charged with, knew exactly the case he was required to answer, knew that he could

have had the benefit of state paid legal representation, knew exactly what the

consequences of persisting in his unacceptable and contemptuous behaviour would

be. He was warned, clearly and unequivocally, that he should desist and that if he

failed to do so there would be consequences but persisted nevertheless. He was

given the opportunity even at the last minute to co-operate, giving rise to the

following exchanges: . . .”

The Court then set out a portion of the transcript dealing with the final opportunity given

to the appellant by the District judge to co-operate with the process before the Court.

The Court continued at paragraph 72 onwards as follows:

“72. Counsel for the respondent maintains that this was manifestly a case that merited

the summary and immediate trial of the appellant in the interests of the protection

of the court’s own process and the maintenance by the court of its authority. I

agree with that submission and in the circumstances agree with the High Court

judge’s conclusion that, notwithstanding some blurring of the lines between the

exercise of the District Court’s civil and criminal jurisdiction there was in reality no

unfairness to the appellant. He can have been under no misapprehension as to the

nature of the contemptuous behaviour that was being complained about, and it is

indicative of the fairness with which he was being treated that it was made plain to

him, even at the 11th hour, that he could avoid sanction by co-operation with the

Page 24 ⇓

proceedings. It was implicit that if he desisted no action would have been taken

even at that stage. Moreover, the judge’s solicitousness in ensuring that he

understood his position, and that he could have the assistance of a lawyer if he

wished to have one, is clearly indicative of the fact that the District Court judge

would readily have listened to anything sensible that he might have offered in his

defence. Instead he persisted with his nonsensical mantras. It is clear that he

knowingly provoked and precipitated being cited for contempt and it ill behoves him

in the circumstances to be contending that he was denied fair procedures. . . .

76. In all the circumstances of the case I am satisfied that the High Court judge was

correct in finding that fair procedures were afforded to the appellant in the

particular circumstances of this case. For completeness, I am also not persuaded,

again in the particular circumstances of this case, that the committal of the

appellant for contempt failed to respect the appellant’s rights under article 6 of the

ECHR, or his rights under the Charter of Fundamental Rights of the EU, or any other

rights enuring to his benefit under EU law.”

48. The issue of contempt in the face of the court has, as has been previously mentioned,

been considered recently in two cases. The first of those was the case of Tracey referred

to above and the second was the case of Walsh. I propose to refer to a lengthy passage

from the judgment in the Tracey case because I think it is of great assistance in clarifying

the law in relation to contempt in the face of the court. It is not unfair to say that the law

in this respect has been somewhat uncertain and confusing. However, the decisions in

the last cited two cases have clarified the position in relation to the law of contempt in the

face of the court to a great extent. At paragraph 14, O’Donnell J. stated as follows:

“14. This court directed that the sole issue to be considered on appeal was whether ‘the

manner in which a finding of contempt in the face of the Court was made against

[Mr. Tracey] breached his rights under the Irish Constitution, under the European

Convention on Human Rights or under European Union law’. On this appeal, Mr.

Tracey represented himself. I mean no discourtesy to him, but it is necessary to

record that both the submissions and papers submitted were somewhat diffuse.

However, the Irish Human Rights and Equality Commission was added to the

proceedings as a notice party, and made helpful submissions, which were broadly

supportive of the position of Mr. Tracey in the appeal. Those submissions were also

considered in the companion case of Walsh v. Minister for Justice and Equality,

Supreme Court Record No. 68/2017, which was heard at the same time, and in

which judgment is delivered today. In that judgment, I suggested that, in the light

of developments in constitutional law, and the jurisprudence of the European Court

of Human Rights, it was important to distinguish between the different procedures

necessary for the maintenance of order in a courtroom, and that, in particular, it

was helpful, and indeed necessary, to distinguish between the procedures required

when an order of a disciplinary nature was made (such as removal from the court in

order to allow proceedings to be conducted in an orderly fashion), and, on the other

hand, the procedures which would be necessary before a conviction could be

Page 25 ⇓

entered and a punishment imposed in the form of imprisonment or a fine. It is

possible to summarise the steps open to a court in the following way: -

(a) Where a person is behaving in a disruptive manner, a judge should warn him

or her that the court has power to remove him or her from the courtroom;

(b) If the conduct persists, the judge should explain to the person what it is that

he or she has done that is considered disruptive, and give the person the

opportunity of saying anything they wish to by way of explanation, excuse,

and apology, and, if so, an undertaking not to repeat the behaviour in

question;

explanation) is forthcoming, it will normally be appropriate to take no further

steps;

(d) If no apology and undertaking, or satisfactory explanation, as the case may

be, is forthcoming, a judge may order the person to leave the courtroom and,

if necessary, direct the removal of him or her from the courtroom. It may be

necessary to arrange for the attendance of the gardaí for this purpose;

(e) Where there is more general disturbance, a judge may order that the court is

cleared. While any court will be reluctant to take this course, it may

nevertheless be necessary. In such cases, members of the public may still be

entitled to enter the courtroom, if they agree to sit quietly during

proceedings. Bona fide members of the media and members of the legal

profession should be permitted to remain on the same basis.

(f) Where the person engaging in disruptive behaviour is a party to the

proceedings, a court should be correspondingly slow to take the step of

removing them from the courtroom, particularly when they are dealing with

the substance of the dispute, rather than procedural issues such as those

involved in the present case. Some issues may require the presence of the

party, and in other cases it may be preferable to adjourn the proceedings.

Nevertheless, the judge may still order the removal of a persistently

disruptive party. In such circumstances, the party should be informed that

arrangements will be made to make available a copy of the relevant extract

from the digital audio recording (‘D.A.R.’), if that is possible. If facilities are

at hand to allow the person to continue to observe and participate remotely

through videolink, these may also be availed of.

I should emphasise at this point that this is not a checklist to be followed slavishly,

departure from which will lead inevitably to judicial review. In the first place, the

law is concerned with the minimum required rather than the maximum desired, and

in many cases it will be a counsel of prudence not to respond immediately to every

comment, and to take steps such as warnings, short adjournments of the sitting,

and more patient explanations before intervening even to this limited extent. On

the other hand, the summary nature of the proceedings is designed to allow the

court to proceed with the hearing of matter (sic) before it in the atmosphere to

which all litigants and participants are entitled as part of the constitutional

Page 26 ⇓

guarantee of the administration of justice. It should not be therefore assumed that

orders made in this respect can routinely be challenged, but if such an order were

to become the subject of judicial review by a superior court, the test to be applied

should consider the overall proceedings, the background facts, and the atmosphere

of the hearing, and in those circumstances consider whether fundamental fairness

was complied with. Up to this point, it should be said that the court is not

exercising a contempt jurisdiction, and the making of an order for removal does not

involve a finding of contempt, or require the procedural safeguards necessary

before the trial and conviction of a criminal offence. However, a court may consider

the particular conduct so serious as to merit proceedings for contempt which may

result in a punishment whether by way of fine or imprisonment.”

O’Donnell J. then proceeded to set out a number of steps that should be taken if the

conduct was such as to merit proceedings for contempt which could result in

imprisonment or a fine. In those circumstances he stated as follows at page 6 of the

judgment:

“6. If so, the following steps could be taken:

(g) Where it is considered that the conduct at issue is serious enough, whether in

itself, because of the persistence of the behaviour, or because of the

involvement of others in a concerted way, then a court may consider that it is

appropriate to proceed with a separate hearing of a charge of contempt,

which, if established, may lead to the imposition of a punishment, whether by

way of a fine or a period of imprisonment;

(h) Where a court considers it necessary to invoke the contempt jurisdiction, the

person concerned should be warned, told in simple terms of the conduct

considered capable of constituting contempt, and given the option of

obtaining legal representation (including legal aid if their means are

insufficient);

(i) Although the hearing can proceed immediately where lawyers are available

(or, if having been offered the opportunity of representation, the individual

refuses it) in some cases it may be necessary for the hearing to be postponed

for short period to allow for the arrangement of legal representation. The

adjournment may also allow a time for reflection. In any event, the person

should be informed clearly of the time and date fixed for the contempt

hearing, and the hearing should proceed within a short period of the original

incident;

(j) During the period of adjournment or deferral, the immediate disruption of the

business of the court can be addressed, if necessary, by the removal of the

person from the court. Furthermore, the court has the power ancillary to the

contempt jurisdiction to detain the person temporarily pending the hearing.

However, this power should be exercised with restraint, and the period of

detention should not extend to more than a day, normally during the day on

which the incident occurred;

Page 27 ⇓

(k) The hearing can be straightforward, but the accused person must be given a

fair opportunity of defending himself or herself. Since this is in its nature a

criminal offence, even if a unique one, the criminal standard of proof beyond

reasonable doubt must be applied. Furthermore, there is the same right of

appeal as lies from any other decision of the court. However, given the

availability of the D.A.R., there should be little room for dispute as to what

was said, and it will be unlikely, therefore, that there could be any need to

seek to have the judge (or indeed any other court officer) called as a

necessary witness and in most, if not all, cases, it will be inappropriate to

seek to do so. Production of the extract from the D.A.R., if required, by the

clerk or registrar is all that would be necessary to establish the basic facts in

most cases. It would then be a matter for the accused person to offer

representations in their defence, whether by way of submissions as to

whether the conduct amounts to contempt, or, if so, by offering an

explanation or apology, or raising other matters which might be considered in

mitigation. This may, if necessary, include the giving of evidence.

(l) When the alleged contempt consists of allegations against a judge personally

in some respect, so that there could be a well-founded apprehension of the

appearance of unfairness if the judge proceeded to deal with the contempt

issue, it will be necessary to have the issue heard and determined by another

judge, possibly via a referral to the Attorney General, who may bring the

matter before the High Court. Once again, the availability of the D.A.R.

should mean that this issue should not involve a dispute as to what was said

in court. The judge should not be a necessary or, indeed, an appropriate

witness in most, if not all, cases.

(m) The criminal standard of proof must apply, and the decision should be

capable of appeal, where appeal lies from the decision of the court. Where

the contempt is alleged to occur before a court of final appeal, or in respect

of which appeal is limited, the court may proceed, however it retains the

option of directing that the matter be heard in the High Court, which has full

and original jurisdiction in this regard.”

49. O’Donnell J. went on to explain the basis of the statutory regime to be found in s. 6 of the

1871 Act but it is not necessary to deal with that in detail save to acknowledge that

O’Donnell J. noted at paragraph 16 of his judgment that:

“16.

. . . where a District Court acts to have someone removed for the

purpose of maintaining order in court at a particular hearing, the 1871 Act or the

1851 Act, as appropriate, provides sufficient jurisdiction and authority, but where it

is considered necessary to proceed to a full hearing on another day in

circumstances where, if established, a court may consider imposing a punishment,

including a fine or committal to prison, it is appropriate to proceed under the

common law jurisdiction.”

Page 28 ⇓

As noted in the submissions of the respondent this was not a case in which it was

necessary to adjourn the matter to a full hearing on another day and therefore there was

jurisdiction to deal with the matter under the provisions of s. 6 of the Act of 1871.

50. This Court has in the course of the judgments of O’Donnell J. in the cases of Tracey and

Walsh outlined the steps that could be taken when difficult situations arise in court which

may amount to contempt of court. They also outline the steps that can be taken when

contempt of court has occurred. This case concerns a summary trial of Mr. Ryan in

relation to contempt of court. The circumstances to be borne in mind cover not just the

date on which the matter reached its conclusion but also the events that occurred at

previous hearings. It is manifestly clear that the Court dealt with Mr. Ryan with great

patience and forbearance throughout the course of the proceedings which first

commenced before him in 2016. It is also very clear that the District Court judge warned

Mr. Ryan as to his behaviour and his lack of co-operation on a number of occasions

culminating on the 24th January, 2017 when the judge stated:

“And I will renew my warning that if a statement of means is not provided and if

there is not cooperation with the court on the next date, you are at risk, sir.

And therefore, I offer you the opportunity again, that if you decide to come to court

and continue with the kind of carry on that you did on the previous occasion you

should bring a solicitor with you. And because – and that solicitor will be granted

legal aid, so you have no excuse for not bringing one. But there will be

consequences upon the next day. Do I make myself very clear, sir?”

51. It was suggested on behalf of Mr. Ryan that the prior suggestions by the Court to the

applicant to obtain the services of a lawyer were made in the context of the civil

proceedings but I think it is absolutely clear from that passage that the Court was not

confining itself solely to the civil proceedings but was also advising him to obtain a

solicitor having regard to his behaviour in the court. Indeed, I agree with the conclusions

of the Court of Appeal set out in paragraph 72 of its judgment and which I have

previously referred to. This was a case in which Mr. Ryan could have been under no

misapprehension as to the circumstances in which he found himself. He previously had

been the subject of a finding of contempt of court albeit that the order made on that

occasion was not executed. He was advised repeatedly as to his behaviour by the District

Court judge and further he was advised to obtain the assistance of a lawyer and that legal

aid would be provided for such a lawyer should that be required. There is no doubt that

he was well able to deal with any issue that could have arisen in his defence had he

wished to do so. He could have been under no misapprehension as to the nature of the

proceedings before the court and he was given every opportunity to deal with the matter.

As it was pointed out in the Court of Appeal at para 72:

“72.

. . . it is indicative of the fairness with which he was being treated that it

was made plain to him, even at the 11th hour, that he could avoid sanction by co-

operation with the proceedings.”

Page 29 ⇓

52. The key consideration in this this case was whether or not Mr. Ryan was in fact afforded

fair procedures in the course of the proceedings leading to his committal for contempt of

court. The analysis of what occurred in the District Court would have been more

straightforward had the District Court had the benefit of the guidelines enunciated by

O’Donnell J. but of course, this case took place prior to the delivery of the judgments in

Tracey and Walsh. I am satisfied that in all the circumstances of the case and over the

course of the proceedings as a whole Mr. Ryan was afforded fair procedures throughout

the various hearings before the Court as described in the previous paragraph. However, it

is important to emphasise the significant assistance that has been provided to judges in

the form of the guidelines referred to above and it behoves all judges to have regard to

those guidelines and to operate the guidelines when faced with situations that could lead

to someone being committed to prison for contempt. A failure to follow the guidelines will

almost inevitably lead to a successful application for relief pursuant to Article 40.4.2.

Conclusion

53. Two issues arose in this case, the first related to the question of whether or not it would

be appropriate to deny a party relief pursuant to Article 40.4.2 in circumstances where

there was an abuse of the process of the court in the manner in which the inquiry was

sought and/or pursued. In this case, having regard to the matters described previously in

the course of this judgment there is no doubt whatsoever that the way in which these

proceedings were initiated and the sequence of swearing of affidavits which were not

factually correct constituted an abuse of process. Indeed, the most disturbing aspect of

the matter is the fact that having been released from custody, Mr. Ryan swore an affidavit

verifying the matters set out in the affidavit of his solicitor which he, of all people, knew

not to be correct. Having said that, that does not mean that once initiated the Court

should not proceed with the inquiry and should not consider the question of whether or

not the individual’s detention was lawful. Once the inquiry is initiated the Court must

carry out such an inquiry. It could not be the case that a person who is found to be in

unlawful detention can continue to be held in unlawful detention simply by reason of their

abuse of the process leading to that conclusion. If the party is in unlawful detention they

must be released. That does not mean that an abuse of process of this kind can be left

without sanction. There may be issues in regard to the costs of proceedings where a

party has initiated such proceedings in circumstances which amount to an abuse of

process but it is not appropriate or permissible to continue the unlawful detention of the

individual as a form of sanction to deal with abuse of the process concerned.

54. There has been some confusion in relation to the procedure that ought to be followed by a

court when confronted by contempt in the face of the court. The law in this regard has

benefitted significantly from the judgments of this Court delivered by O’Donnell J. in the

cases of Tracey and Walsh referred to above. Those decisions set out a number of steps

that may be followed in such cases in order to deal with difficult situations that can occur

which can ultimately lead to an individual or individuals being imprisoned for contempt of

court. It is clear from those decisions that courts should take every opportunity possible

to defuse situations that may give rise to contempt of court but of course in some cases,

no matter what steps are taken by a court to deal with behaviour in the court which

Page 30 ⇓

amounts to contempt of court it may be necessary in some cases to invoke the ultimate

sanction of imprisonment for contempt of court. What the court must always do is to

ensure that fair procedures are provided to the individual or individuals concerned. In

this case, it is manifestly clear that the Court bent over backwards to be patient and

attempted to encourage and persuade Mr. Ryan to co-operate with the Court in the

context of the civil proceedings before the Court and also warned him as to the manner in

which he was conducting himself before the Court and the consequences that could flow

from his behaviour. Mr. Ryan was offered every opportunity to deal with the matter

appropriately and did not do so. He was offered the opportunity to obtain legal advice if

necessary with the benefit of legal aid. He did not take that opportunity. The case was

adjourned on at least one occasion in order to facilitate him in co-operating with the

court. He did not do so. There was no denial of fair procedures to Mr. Ryan.

55. In all the circumstances of the case I would dismiss the appeal.

Result: Appeal Dismissed