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‘Temples of the Truth’1

Niall Nolan, Barrister

July 2014

Introduction

Delivering judgment in Jeffrey Mr. Justice Max Barrett so described our courts. He

did so in the context of a decision of particular interest to criminal practitioners. The

case involved a claim for damages for negligence and breach of duty in circumstances

where, Mr. Jeffrey having been convicted of certain road traffic offences, a garda

gave evidence that he had been convicted of a number of serious offences. However,

these convictions related to another individual of the same name. Regrettably

however, despite the fact that the mistake was corrected during the course of the

hearing, the erroneous list of convictions was reported prominently in local media.

After protracted correspondence a “Statement of Regret” was eventually extracted

from An Garda Siochana. Mr. Jeffrey was not sated and launched the aforesaid

proceedings. He lost. Judge Barrett helpfully set forth the principles to be gleaned

from the relevant case-law: -

“12. It appears to the court that the following key principles can be gleaned from the above cases:

- first, any perceived damage that appears to arise for an individual as a

result of what transpires at or before court proceedings must be balanced

against the obligation of the courts to administer justice in cases coming

before them, an obligation which requires that witnesses be free to give

evidence without fear of consequences;

- second, in instances of “flagrant abuse”, to borrow from the judgment of

Barrington J. inLooney, there may be some bounds to the privilege; however,

this requires malicious and wanton behaviour of a type that was not present in

the Looney case and also does not arise in the present case;

- third, whatever form of action is sought to be derived from what was said or

done in the course of judicial proceedings is generally barred by the long

1 Per Barrett J., Jeffrey v. MJE & Ors [2014] IEHC 99

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standing rule which protects witnesses in their evidence before the court and

in the preparation of the evidence which is to be so given.”

And with that memorable phraseology the judgment concludes: -

“13. The courts are temples of truth. That, at least, is the ideal. Within their

confines there should be a minimum of circumspection on what can be said so

that the truth can be determined and justice done. Were matters to be

otherwise, were witnesses to be exposed to the threat of any form of litigation

for what they said in court, truth would soon be the victim of unreal

expectations and our system of court-administered justice would quickly

founder. For this, and for the reasons identified above, the plaintiff’s action in

this case must fail.

What is the truth about the state of application of the judicial review jurisprudence

insofar as it is transacted in the arena of criminal practice? That is a question beyond

the reach of the writer, but what is true is that the dynamism of the case-law continues

to surprise, innovate and fascinate. Moreover it has also been recently decided that the

truth, albeit in a very discrete sense can form a particular basis for the granting of

judicial review relief.

Truth as a ground of review

In Richard McCann v Judge Anthony Halpin & The Director of Public

Prosecutions2 the Applicant sought judicial review on a number of grounds in the

context of a District Court hearing which bears some similarity no doubt to those

which many of us have had to contend with. It was marked one might say by

confrontation, hostility and no small amount of confusion.

The allegation was of criminal damage. Grounds based on inadequate reasoning and

interruptions of counsel were dismissed by Mr. Justice Cross. Relief was however

granted, firstly, on the basis of objective bias. In this regard the Court inter alia stated

at paragraph 38: -

“38. Here, I accept that the first named respondent appears to have entirely

misunderstood the nature of the submissions and also the nature of the role of

the defence and prosecution in this case. The prosecution witness had given

evidence of seeing a white taxi from which the applicant had allegedly

alighted which remained at the scene. Counsel was entitled to make

submissions and question the witness as to the unlikelihood of this. The first

2 [2014] IEHC 276

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named respondent then erroneously suggested that there was no evidence that

the vehicle was a taxi when clearly there was some evidence and indicated

that in effect he would not accept that the vehicle was in fact a taxi unless the

defence produced a disc with the taxis badge number. It is, of course, never

incumbent upon the defendant to prove any aspect of the matter and I believe

that a reasonably informed observer might have on those exchanges in

relation to the taxi alone have formed the view there was Objective Bias in this

trial.”

The second basis upon which relief was granted was the finding that the “trial was

rendered unfair by reason of the failure of the prosecution authorities inadvertently to

disclose the true nature of their knowledge of the circumstances of the night in

question”.3

In this regard the judgment is also of particular procedural note as the Court allowed

the applicant to amend his grounds, as late as the hearing date, because the interest of

justice allowed it (para.55). The added ground for relief which ultimately found

favour with the court was “(d) the inadvertent failure by the prosecution to indicate to

the court that they had the evidence in support of the applicant when he stated under

cross examination that at a particular time he was in fact in custody and could not

have committed the crime if had occurred at that time was such to render the trial

unfair.”

Reasons – “No need to elaborate on the obvious”4

Two notable decisions have been delivered recently. Dismissing Mr. Kenny’s appeal

from the expansive judgment of the now retired Judge Iarlaith O’Neill delivered in

Kenny v Judge Coughlan & The DPP5, the Supreme Court has emphasised that

context is everything. The case concerned a conviction for a speeding offence

following a contest. Delivering the judgment of the Court Chief Justice Denham

stated: -

“24. As the case-law of the European Court of Human Rights indicates, and as

also stated earlier in this judgment, the degree and extent to which a decision

of the District Court must be explained by giving reasons will depend in turn

on the nature and circumstances of the case. In some cases it may be

necessary to succinctly but fully explain the reasons for the decision so that

the parties have a proper understanding of the reasons upon which it was

based. In this case the offence was simply that of speeding and the mode of

trial was summary. This was one of hundreds of such cases that come before

the District Court routinely every day of the week. There had been a clear

presentation of the issues by the parties, in adversarial proceedings. The

District Court Judge indicated that he preferred the evidence given on behalf

3 para.60 4 Per Denham CJ in Kenny v Coughlan & DPP 5 [2014] IESC 15

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of the prosecution. The District Court Judge said that he was accepting the

evidence of the prosecution. In the circumstances that was sufficient reason.

There was no requirement for the trial judge in such a situation to elaborate

on the obvious.”

The second case of note is the decision of the Supreme Court delivered in Thomas

Murphy v Ireland & Ors6 delivered just a few days after Kenny. In this case Mr.

Murphy pursued inter alia a declaration that Section 46(2) of the Offences Against

the State Act 1939 (as amended) was repugnant to the Constitution of Ireland. It was

with recourse to this section that the DPP had certified that the prosecution of Mr.

Murphy with regard to certain revenue matters should take place not before a Jury,

but rather the Special Criminal Court. Numerous detailed alternative pleas were raised

by the Plaintiff. In this regard the refusal to give reasons for the decision to send the

case to the Special Criminal Court was complained of.

A number of important matters of procedure and substance were dealt with in the

single judgment of the Court, delivered by Mr. Justice Donal O’Donnell. In the first

instance and in the context of how constitutional challenges may be pleaded, the

Court stated as follows at paragraph 9: -

“9. It is not necessary that every challenge to the constitutional validity of an

Act of the Oireachtas be commenced by plenary summons. Such a course is

preferable where it is anticipated that a significant amount of oral evidence

will be necessary and where the process of exchange of pleadings can then

identify the issues to which evidence may be directed, and refine the legal

issues in dispute. In this case it is worth recalling that no evidence was called

at all. But where plenary procedure is adopted, then it is essential that the

matters be prosecuted with urgency and with a timetable which ensures that

the matter is determined promptly so as to occasion the shortest possible delay

to any pending criminal trial, and indeed to ensure that the state of

uncertainty which must necessarily effect other trials on the same offence, or

by the same procedure, is resolved, one way or another, as soon as possible.

The superior courts are over burdened and significantly under resourced but

they should, and do, give priority to cases of systemic importance or which are

causing delays in criminal trials. However, to accomplish this, the courts must

be aware of the case and its importance for other cases. There is a clear

obligation on the parties to bring the matter to the courts’ attention and to

seek expedition at the earliest possible stage. Furthermore, I do not consider

that it should be taken for granted that a trial, and indeed any subsequent trial

in which the same point can be said to arise, should be allowed to be

adjourned as a matter of course pending the outcome of the challenge. That

would be to give an applicant the benefit of an injunction without any

application to, or consideration by, a court. Such an acceptance could involve

in effect the suspension or disapplication of law enacted by the Oireachtas and

entitled to the presumption of constitutionality. Prima facie, the bringing of

this prosecution was a compliance with the law which continues to be binding

6 (Unreported O’Donnell J., 11th of March 2014)

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unless declared repugnant to the Constitution by the only courts with

constitutional power to do so. If the law is not enforced over a protracted

period, but subsequently the challenge is rejected, there will have been great

damage to the system of law enforcement that is not capable of calculation or

repair. It is necessary for both parties to such a case to understand the

constitutional values in issue and to cooperate in agreeing a speedy timetable

to ensure the case is disposed of as soon as possible.”

In an illuminating passage on the standards that apply not only to jury trials but also to

prosecutions in the District Court, that is to say summary proceedings, the Court

stated:

“15. Article 38 is part of the section of the Constitution dealing with the courts

and the administration of justice. The provisions of Article 38.1 are absolute

and are not qualified by the succeeding sub-articles. Any person who is tried

on a criminal charge must be tried “in due course of law” whatever the court

in which that person is tried. The concept of “due course of law” comes with

an impressive lineage in the common law tradition. It undoubtedly imposes limitations on the manner in which courts may be established, procedures

adopted and cases tried. For present purposes the important sub articles are

2, 3 and 5. Again, there can be no doubt that the Constitution intended that

trial by jury would be the standard template by reference to which all criminal

trials are to be measured. The constitutional importance of trial by jury

transcends the fact that such trials are very much the exception rather than the

norm today. Most criminal trials are summary trials in the District Court and

even the majority of trials on indictment are resolved by pleas of guilty. But in

summary trials the standards applied are those derived from trial on

indictment before a jury. Trial by jury is both an important constitutional right

of the citizen and a constitutional obligation on the State. It derives its

constitutional importance not just from its impressive place in the history of

the common law, but also because it provides for the direct involvement of the

people in the administration of justice.

To my mind, this passage underscores the solemnity and care that must attend the

disposal of criminal business before the District Court in terms of fundamentals such

as notice, disclosure, representation and inviting and considering submission etc.. As

this judgment serves to emphasise, there is no half-way house as regards the duty on

District Judges to act fairly and ensure fairness.

Returning to and elaborating upon the concept of context Judge O’Donnell stated at

para.31: -

“The question of an entitlement to reasons is intertwined with the availability

of judicial review. The requirements of procedural fairness are dictated by the

particular circumstances: there is no one size fits all. It cannot be said that the

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decision of the Director of Public Prosecutions in relation to prosecutions

generally, or when deciding on a trial in a non-jury court, is beyond the scope

of judicial review. By the same token, that review, and any consequent

obligation to provide reasons, is limited. There is here, as in other areas of the

law, a tension between supposed demands of logic, and those of pragmatism

and experience. That is normally a healthy tension which encourages a review

of the solution reached and at times, incremental changes in the balance fixed

by the law. But any solution which does not at least recognise and address the

values on each side of the balance, can only achieve the comfort of such

clarity and certainty at the price of forfeiting respect.”

The Court’s section on ‘Reasons’ bears setting out in full, but of some substantial note

is that, although the various claims for declarations of invalidity were dismissed, the

Court nonetheless pronounced at para.42 that certain obligations rested on the DPP in

the context of the discussion of the subject matter and essential feature of the appeal.

In this regard the Court stated: -

“Reasons

39. In Mallak v. The Minister for Justice, Equality & Law Reform [2012] IESC 59 (hereinafter “Mallak”) Fennelly J. sought to identify a rule of

general application in administrative decision making. In an elegant passage

at paragraphs 66 and 67 he said as follows:

“In the present state of evolution of our law, it is not easy to conceive of a

decision-maker being dispensed from giving an explanation either of the

decision or of the decision-making process at some stage. The most obvious

means of achieving fairness is for reasons to accompany the decision.

However, it is not a matter of complying with a formal rule: the underlying

objective is the attainment of fairness in the process. If the process is fair,

open and transparent and the affected person has been enabled to respond to

the concerns of the decision-maker, there may be situations where the reasons

for the decision are obvious and that effective judicial review is not precluded.

Several converging legal sources strongly suggest an emerging commonly

held view that persons affected by administrative decisions have a right to

know the reasons on which they are based, in short to understand them.”

40. However, the decision in Mallak was rather more nuanced than a simple

citation that these paragraphs would suggest. The judgment points to s.18(2)

of the Freedom of Information Act 1997 which introduced in to Irish law a

statutory entitlement to reasons. However, the Director of Public Prosecutions

is not subject to that Act in respect of prosecutorial

decisions. Mallak undoubtedly brings the common law on the duty to give

reasons into line with the obligations of statute, but it does not address the

question whether the common law requires decision makers to go further than

the statutory requirement. Put another way, the considerations which

underpin the limitation and the scope of the statutory right to reasons may

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also be effective at common law. The decision in Mallak refers, without

disapproval, to the decision in Eviston v. The Director of Public

Prosecutions and also to The State (Lynch) v. Cooney where there was limited

right of review and no reasons were provided until the High Court hearing.

Perhaps most notably, the decision inMallak contemplated the possibility at

paragraph 77 that a decision maker could comply with the requirements of the

law not by disclosing reasons but rather by “providing justification” for

refusing to do so.

41. The obligation to give reasons is, as has been observed, dependent upon

and a reflection of, the reviewability of the decision and the scope of that

review. The decision made here is at the end of the spectrum where review is

most limited and attenuated. This is because of the subject matter of the

decision, the sensitivity of the matters routinely considered, and the fact that

the end result of a decision to prosecute will be a trial in open court pursuant

to the dictates of Article 38.1. The category of reasons which apply in the

context of the Offences Against the State Act are reasonably well known. They

are in part contained in the decision of the government to bring Part V into

operation on the grounds that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and

order, and also in the Director of Public Prosecution’s certificate that those

conditions mean that the administration of justice and preservation of peace

and order cannot be secured in the individual case. There is, as Barrington J.

observed, in Kavanagh, certain logic to these matters not being the subject

matter of a court decision. Casey in The Irish Law Officers observes at page

302:

“Since the Constitution expressly contemplates the establishment of special

criminal reports, there can be no question as to their validity. Given this, it is

necessary to provide some means of selecting the cases to be tried in those

courts. It is obviously impossible to draw up a list of “Special Criminal Court

offences”. The scheduled offences goes some way in that direction but since

virtually any offence may be committed for political reasons … there must be

some way of segregating appropriate cases and directing their trial in the

Special Criminal Court. It is difficult to see how this can be done otherwise

than by vesting discretionary authority in the public prosecutor”.

42. It also follows from the decision of the government and the certificate of

the Director of Public Prosecutions that it is highly likely that the reason why

the Director of Public Prosecutions considered that the ordinary courts are

not adequate to secure the administration of justice in the particular case must

relate to the connections of the individual with organisations which are

prepared to interfere with the administration of justice. Nevertheless, trial by

jury is a constitutional requirement in those cases to which it applies. A

decision which has the effect of removing a case which would otherwise be

tried by a jury to be tried by a judge or judges alone is a decision which must

comply with the dictates of the Constitution. Accordingly, the Court considers

that it is necessary in such a case that the Director of Public Prosecutions, if

requested, should either give such reason, or, as contemplated in Mallak,

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justify a refusal to do so. While this, in most cases, may be an entirely

predictable step, it is nevertheless an important one in an area where there is

a significant limit on the jurisdiction of the courts and it is desirable that such

an obligation should be required where that duty to give reasons can be

complied with without damage to the other public interests involved.

43. Where the Director is making a decision that is subject to only limited

review by a court and has the result that a trial which would otherwise take

place before a jury would be heard without a jury, then the Director is under a

duty to give reasons for that decision which extends to why he or she considers

that the ordinary courts are not suitable for a trial of this accused. As

indicated in Mallak, in an appropriate case it may be sufficient to state that no

reason can be given without impairing national security. A statement of

reasons that the Director of Public Prosecutions believes the accused to be a

member of, or associated with, an organisation that is prepared to interfere

with the administration of justice, or even justifying the non-delivery of such

reasons, will be sufficient unless the accused challenges the decision and

provides sufficient information to the court, to presumptively undermine the

Director’s reasons. As, for example occurred in The State (Lynch) v. Cooney, it may be permissible at that stage for the Director to amplify and explain any

reasons if thought desirable. It follows however that the entitlement to obtain

such reasons does not carry with it any right contended for by the plaintiff to

obtain the gist of information grounding such a decision, or to have a hearing

or to make submissions before a decision is made. The facts and argument in a

case such as this lie in a fairly narrow compass. The question in any case is

whether the Director of Public Prosecutions was entitled to consider that the

ordinary courts were inadequate to secure the administration of justice in a

particular case. Review of such a decision should be the exception and never

the routine, and only when an accused person can put forward a substantial

case that the decision making process has miscarried. The legal position

outlined above balances the desirability of reasoned decision making to

strengthen the administration of justice with the necessity to ensure that the

process is tightly controlled to avoid routine disclosure and review which

could undermine it.” (Underlining added)

Article 40.4.2 of The Constitution 1937

The most recent Supreme Court pronouncements on the constitutional remedy for

unlawful detention were delivered recently by the Chief Justice and Mr. Justice

O’Donnell in Farrell v The Governor of St. Patricks Institution7. The case concerned

whether a stay granted at the leave stage in a judicial review application prevented a

District Court making a further order remanding an accused in custody. Mr. Justice

Hogan in the High Court believed it did. The Supreme Court disagreed.

7 [2014] IESC 30

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Mootness and it’s scope and ambit in the context of the application and judgments

loomed large. Given the systemic importance of the issue, the Supreme Court pressed

on with the substantive issues. In his judgment Mr. Justice O’Donnell opened

emphasising the importance and singularity of the jurisdiction: -

“2 The remedy of Article 40.4 is the great remedy available to citizens and all

persons with access to the jurisdiction of these courts. Its strength is its

simplicity and its speed. It is meant to address – forthwith – the question of the

lawfulness of the custody or detention of any individual. The order which the

Court makes at the conclusion of the inquiry is either to order the release of

the person, or not. The urgency with which the courts are obliged to, and do,

treat such applications is itself an illustration of the importance of the

Constitution attached to this remedy as a foundation of liberty within the State

itself and essential component in the constitutional order created by the

Constitution. Liberty, in the full meaning of the word is fundamental to both

the exercise and enjoyment of the rights identified in the Constitution and the

functioning of the democratic structure created by it. But the fact that such

matters must be dealt with speedily by the High Court, and where necessary

on appeal by this Court, can also mean that the law can develop in a staccato

fashion with each individual case no more than an illustration of the reasons

why the remedy was granted or refused in that case. Much of the case law has

been gathered, and valuably analysed in Dr Kevin Costello’s impressive

work The Law of Habeas Corpus in Ireland (Dublin; Four Courts Press;

2006), but that exercise in scholarship only illustrates the desirability of more

comprehensive review by reference to principle and authority.”

On the substantive issue the Chief Justice stated inter alia: -

“61. It is clear that a stay order is not an order terminating proceedings. It is

an order staying, postponing, suspending the proceedings. It is an order

maintaining the status quo. Thus, the proceedings being stayed, in this case

the proceedings in the District Court, are to be maintained in a holding

pattern, the status quo, until the termination of the application for judicial

review.

62. It is clear, therefore, that a stay does not have the effect of terminating

proceedings. Rather a stay leaves the proceedings in being but prevents the

proceedings from progressing in any significant way. To the extent that it

might be suggested that it was appropriate that some progress might be made

in the proceedings, notwithstanding a stay, then that is a matter to be

addressed to the judge granting the stay. An application can be made to that

judge to make the stay subject to terms which would permit whatever progress

might be considered desirable. In the absence of such terms, a stay will

prevent the proceedings from significantly progressing. That does not,

however, mean that any orders necessary to allow the proceedings to continue

in being, albeit in a “holding pattern”, cannot be made.

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Thus the real question is as to whether any order sought to be made is one

which is consistent with or contrary to the fact that the proceedings are

stayed. Orders which are a necessary part of keeping the proceedings in being

are entirely consistent with a stay for they do not progress the proceedings in

any material way but simply allow the proceedings to continue in their holding

pattern. On the other hand different types of orders which would have the

effect of materially progressing the proceedings are contrary to a stay and

cannot be made in the absence of a specific provision in the stay order

qualifying the terms of the stay in such a way as to permit orders of the type in

question to be made.

63. However, the granting of leave to apply for judicial review, and a stay

pending the determination of the application for review, do not terminate the

underlying proceedings the subject of the judicial review. The underlying

proceedings are suspended pending the review.

64. Any other interpretation would have the effect that, on an ex

parte application for leave to apply for judicial review where the DPP was not

on notice or a party to the application, the prosecution process would be

effectively terminated.

65. Consequently, the granting of a stay by the High Court on an application

for judicial review postpones or suspends the proceedings relating to the

criminal trial, the subject of an application for Judicial Review, but it does not

terminate the proceedings, or mean that a District Court Judge could not

continue to make orders while the proceedings are suspended, such as to

remand an accused in the circumstances, provided that any such orders are

required to maintain the proceedings in being and are not contrary to the stay.

Thus, the District Court continued to have jurisdiction to make such an order,

pending the determination of the application for Judicial Review.”

In FX v the Clinical Director of the Central Mental Hospital8 the Supreme Court

appeals essentially concerned the processes by which Mr. X was sent, from the

Central Criminal Court to the Central Mental Hospital, having been found unfit to be

tried. The Court identified four issues that required resolution namely:-

“(i) Whether the High Court had the jurisdiction to conduct an Article 40.4.2

inquiry into the lawfulness of a detention ordered by the Central Criminal

Court.

(ii) Whether the High Court, satisfied that the detention of the respondent was

unlawful, was permitted to place a stay upon the order for release under

Article 40.4.2 of the Constitution.

8 [2014] IESC 01

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(iii) Whether s.4(5)(c)(i) of Criminal Law (Insanity) Act 2006, as amended

required the Central Criminal Court, once satisfied that the accused was unfit

to be tried, to adjourn the proceedings in order to consider the evidence of an

approved medical officer adduced pursuant to s.4(6)(b) of the Act of 2006.

(iv) Whether the decision of the Review Board dated 27th April, 2012

replaced the order of the Central Criminal Court dated 26th March, 2012 as

the basis of the respondent’s continued detention.”

The Court answered the questions as follows:-

(i) Yes (upholding the High Court ruling on the point)

(ii) Quotation from Denham C.J. –

“79. There is no provision in the Constitution for a stay. Consequently,

any order, such as was made in N. v. HSE, is made in the process of

controlling the release, for the purpose of protecting the person who is

incapable of protecting themselves.”

(iii) Quotation from Denham C.J. –

“82. The High Court held that the Oireachtas had added a layer of

protection for the benefit of an accused person found unfit to plead and

had established core protections for vulnerable persons. The learned

High Court judge acknowledged that in this case compliance with the

two stage procedure would have been most unlikely to have altered the

result. However, he held:-

“43. In summary, therefore, I am left with the inescapable conclusion

that the [respondent’s] detention became unlawful after the initial

fourteen day period of detention, inasmuch as the section precludes the

making of an order for indefinite detention in the Central Mental

Hospital (subject to the making of an order by the Review Board under

s. 13 or s. 13A) under s. 4(5)(c)(i) without the court first having heard

the evidence of the approved medical officer adduced pursuant to s.

4(6)(b). This failure is apparent on the face of the order of the

Central Criminal Court.” (emphasis in original)

83. I agree with the statutory interpretation given by the learned trial

judge, and would affirm the judgment of the High Court on this aspect

of the case.”9

9 Essentially what had happened was that a final order had been made by the Central Criminal Court committing

Mr. X for treatment to the CMH in circumstances where steps that should have been taken prior to such a final

order had not been taken, this is to say committal to the CMH in the first instance for the purposes of

examination, assessment and report to the criminal court, in this case the Central Criminal Court, which then,

having considered such report, could make the order committing Mr. X for in-patient care, subject to review

pursuant to S.13 of the Act

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(iv) Given the circumstances of the case, the Court did not find it necessary

to address this question

The guidance the judgment offers on the vexed question of whether, when parties are

confronted with illegality, the appropriate remedy is appeal, judicial review or an

application pursuant to Article 40 of The Constitution is of particular assistance. In

this regard the Supreme Court, with Chief Justice Denham delivering the sole

judgment of the 5 member Court stated:

“65. In general, if there is an order of any court, which does not show an

invalidity on its face, then the correct approach is to seek the remedy of appeal

and, if necessary, apply for priority. Or, if it is a court of local jurisdiction,

then an application for judicial review may be the appropriate route to take. In

such circumstances, where an order of the court does not show any invalidity

on its face, the route of the constitutional and immediate remedy of habeas

corpus is not the appropriate approach.

66. An order of the High Court which is good on its face should not be subject

to an inquiry under Article 40.4.2 unless there has been some fundamental

denial of justice. In principle the appropriate remedy is an appeal to an

appellate court, with, if necessary, an application for priority. Thus, the

remedy under Article 40.4.2 may arise where there is a fundamental denial of

justice, or a fundamental flaw, such as arose in The State (O.) v.

O’Brien [1973] 1 I.R. 50, where a juvenile was sentenced to a term of

imprisonment which was not open to the Central Criminal Court.

67. In Costello, the Law of Habeas Corpus in Ireland, it is stated that “The

institutional precedence of the Court of Criminal Appeal over habeas

corpus is long established.” (Four Courts Press, 2006, p. 207). In The State

(Cannon) v Kavanagh [1937] I.R. 428, Maguire P. dismissed an application

for habeas corpus where the applicant could appeal to the Court of Criminal

Appeal. In the The People (A.G.) v. Edge (1942) 76 ILT & SJ 199, an

application for habeas corpus by a prisoner convicted of the offence of

kidnapping, which he subsequently established was not known to the law, was

adjourned until the appeal in the case was determined by the Court of Criminal

Appeal. In Kelleher v. The Governor of Portlaoise Prison (30th October,

1997, Hamilton, O’Flaherty, Murphy JJ.) while accepting that in exceptional

circumstances the court could entertain a point under a complaint under

Article 40.4.2 while there was an appeal pending, this Court, in an ex tempore

decision, dismissed the application. It was stated:-

“If there is any validity in the submissions made by [counsel for the applicant]

in this regard the proper venue for the determination of these issues is the

Court of Criminal Appeal which the [applicant] has already applied for leave

to appeal against his conviction and sentence. It is submitted by [counsel for

the applicant] that there are exceptional circumstances in the case which

would justify this Court directing the High Court to conduct a full inquiry into

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the lawfulness of the detention… These are questions that occur regularly in

the course of proceedings in the Criminal Courts and before the Court of

Criminal Appeal and in my opinion there is nothing exceptional about the

circumstances of this case.”

68. The existence of an appeal procedure capable of correcting errors is itself a

part of the due course of law. In The State (McDonagh) v. Frawley [1978]

I.R.131, O’Higgins C.J. observed that when a person is detained for execution

of sentence after a conviction on indictment he is prima facie detained in

accordance with law, and:

“The stipulation in Article 40, 5.4, sub – 5.1, of the Constitution that a citizen

may not be deprived of his liberty save ‘in accordance with law’ does not

mean that a convicted person must be released on habeas corpus merely

because some defect or illegality attaches to his detention. The phrase means

that there must be such default of fundamental requirements that the detention

may be said to be wanting in due process of law.”

69. In cases involving detention under the Act of 2006, orders of detention

may be subject to appeal under s.9 of the Act to the Court of Criminal Appeal

which may consider the evidence and make any order which was open to the

court of trial to make.”

In Cirpaci v The Governor of Mountjoy Prison10 these dicta fell for

consideration by the High Court, the Respondent contending:

“that in the light of the decision of the Supreme Court in FX v. Clinical

Director of the Central Mental Hospital [2014] IESC 1 an applicant who had

been convicted by a lower court could normally only proceed by way of an

Article 40.4.2 applicant in cases where the warrant was not good on its

face”

Rejecting this proposition the High Court (Hogan J.) stated as follows:

“26. It follows, therefore, from a consideration of this case-law that the Article

40.4.2 jurisdiction remains a broad and flexible one. It is, however, not as

confined as the respondents suggest. It is rather the case that Article 40.4.2

shines as a beacon of liberty which will never deny refuge to an applicant

who can show a fundamental breach of constitutional rights or the existence of

some other significant defect attaching to the warrant or order providing for

his or her detention.”

The “broadness and flexibility of the Article 40.4.2 jurisdiction” was also emphasised

in the decision of Mr. Justice Barrett delivered very recently in Ryan v Governor of

Midlands Prison11 which will be referred to in greater detail below.

10 [2014] IEHC 76 11 (Unreported 2/7/14)

14

In Byrne (A Minor) v Director of Oberstown School12 the application for release

centred on the failure of our laws to provide remission of sentence for those sent to

the detention school at Oberstown. A charge of unconstitutional discrimination was

levelled against the State given that other prisoners in the system received the benefit

pursuant to statutory provision. Mr. Justice Hogan found that there existed an

“unconstitutional lacuna” and concluded and ordered as follows: -

“52. In summary, therefore, I have found that the language and structure of

the 2001 Act entirely negative the argument that detention at a children

detention school such as Oberstown is essentially different in law to detention

at another juvenile detention facility such as St. Patrick’s Institution. In those

circumstances, any objective justification for the markedly different treatment

of young offenders detained at Oberstown by denying to them the benefit of the

remission rules which apply, for example, to offenders detained at St.

Patrick’s Institution simply falls away. It follows, therefore, that the failure to

afford such offenders with the benefit of the remission rules amounts to a plain

breach of the constitutional command contained in Article 40.1 of equality

before the law.

53. Had Rule 59 of the 2007 Rules been applicable to the applicant he would

have been entitled to be released from Oberstown on 26th November 2013. Yet

any continuing detention beyond that date amounts to a continuing violation

of his constitutional rights by failing to afford him the remission entitlements

available to similarly situated juvenile offenders: see here by analogy the

judgment of O’Flaherty J. in O’Brien.

54. In these circumstances it must be adjudged that by reason of the continued

application to him of this unconstitutional legislative omission, the applicant’s

continued detention at Oberstown is not in accordance with law. In

accordance, therefore, with the requirements of Article 40.4.2 of the

Constitution, it follows that I must direct his release from that custody.”

AB v The Commissioner of An Garda Siochana13 concerned a situation where the

Central Mental Hospital refused – it seems because of a waiting list - to comply with a

District Court order that it receive and assess Mr. B over a period of 14 days before

reporting to the court as to whether in-patient or out-patient care might be appropriate.

This was following a finding of the Court that Mr. B was not fit to be tried. Mr. B was

taken back to the District Court and asked by the Hospital’s counsel to reconsider it’s

order. It refused to do so. Mr. B ended up in Garda custody. MacEochaidh J ruled

inter alia as follows:

12 [2013] IEHC 562 13 [2013] IEHC 88

15

“22. An Garda Siochana are not entitled, much less obliged, to detain a

person in the position of A.B. indefinitely in the hope that a bed becomes

available in the Central Mental Hospital as this would involve the indefinite

detention of a potentially very unwell person in the unsuitable surrounds of a

Garda station.

23. In view of the impossibility of executing the warrant I decided that the

custody of A.B. in the hands of An Garda Siochana was without lawful

authority.”

By virtue of the fact that the applicant was still suffering from mental ill-health, the

Court was troubled as to what the effect of immediate and unsupervised release would

be. It dealt with this aspect of the case as follows:

“31. The solution which the court, with the cooperation of counsel for the

applicant, counsel for An Garda Siochana and other parties present, devised

was to order A.B.'s immediate release, but with the comfort that An Garda

Siochana would, shortly after his release, take him into civil custody under s.

12 of the Mental Health Act 2001 for the purposes of securing medical

attention for him"

A number of successful Article 40 applications have been moved in recent times on

the grounds of defects in committal warrants. In this regard the case of Louise Joyce v

The Governor of the Dochas Centre14 applying the decision of the Supreme Court in

GE v The Governor of Cloverhill Prison15- delivered in the immigration context - to

the criminal detention context, is perhaps the most significant for present purposes.

Directing release Mr. Justice Hogan ruled:

“..it seems to me that I am obliged to conclude that the warrant by reference

to which the applicant is currently detained is bad on its face in that it does

not disclose the offence of which she was convicted. In the light of the

Supreme Court's decision in G.E. v. The Governor of Cloverhill

Prison [2011] IESC 41, (Unreported, Supreme Court, 28th October, 2011), I

must therefore direct the applicant's release pursuant to Article 40.4.2ø as I

am not satisfied that she is detained in accordance with law.”

An unusual case in this line is provided by the decision of Ms. Justice Baker in Gary

Miller v. The Governor of Midlands Prison16. In this case an Article 40 application

was pursued and an enquiry directed on the basis that a short form committal warrant

which issued following a Circuit appeal was defective in the “Louise Joyce” sense. At

the return to the enquiry the Respondent attempted to distinguish the cases by citing

“unique signifiers” appearing on the “Miller” warrant and the fact that it detailed the

actual sentences imposed. Moreover at the return a “long form warrant” was produced

which recited the required full details. This was produced in the knowledge that an

Article 40 application had been commenced. An ancillary argument from the

14 [2012] 2 IR 666 15 [2011] IESC 41 16 [2014] IEHC 176

16

Respondent was that one could pool available documentation which, when read

together, could provide a lawful basis for detention.

The Court found the “short form” warrant defective.

On the pooling of documentation the Court further ruled:

“27. These judgments clearly point to the court having a jurisdiction to hear

evidence which can explain the facts in the warrant and are authority for that

proposition. The jurisdiction of the court, however, is discretionary and

in McMahon v. Leahy [1984] 1 I.R. 525 , McCarthy J., at p. 547, was not

prepared to "overlook the careless approach and lack of attention to detail"

which he found in what was, in that case, an extradition warrant. The court

indicated that one might overlook "patent errors in a printed document" but

that there were circumstances when this would not be exercised in favour of

the respondent. I am not satisfied that there exists any unusual or special

circumstances that might require me to exercise my discretion in this case not

to admit the additional evidence, especially as I can do so without any oral or

extrinsic evidence or any explanation which cannot be gleaned from the face

of the documents offered by the respondent

Application of the law to the facts: the question of the joinder of documents

28. In the case of the short form warrant, I am of the view that it is possible

without hearing any extrinsic evidence or making any extrapolation of fact to

directly link the short form warrant, which contained express individual

signifiers, to the Circuit Court orders themselves as certified by the County

Registrar, and these orders contain the same records numbers as appear on

the face of the short form warrant.

29. In the circumstances, and having regard to clear authority on the subject

that the court may seek and find clarification and assistance in the records of

the court to assist in interpreting the grounds for detention, my view is that the

short form warrant when taken together with and joined to the Circuit Court

orders form a sufficient basis for the detention of the applicant. I say this

expressly because it is possible to join these documents without having to

engage with any extrinsic evidence and because the short form warrant

17

contains, on its face, sufficient and unique signifiers which enable the link to

be made..”

The “long form warrant” which was produced was also found to be in order and

would have rendered the detention lawful but the postscript to the judgment explains

that this was not so. The Judge directed release because the documentation placed

before her and which seemed to justify detention never got to the Governor until an

inordinate amount of time post legal argument in the case.

Some slight retrenchment from the advanced position of “warrant law” to secure

release occurred in the case of MC v Director of Oberstown Detention School17 .In

this case Mr. Justice McDermott refused to order release. On the warrant point the

Court ruled as follows: -

“18. The Warrant is also challenged. It is on its face said to be a

“COMMITTAL TO REMAND CENTRE ON REMAND” under s. 88(1)(c) of

the Children Act 2001. The incorrect sub-section of the Act is relied upon. The

original s. 88 was substituted by a new s. 88 under s. 135 of the Criminal

Justice Act 2006, concerning the requirements applicable to the remand in

custody of a child. The wording of the substituted s. 88(1)(a) is identical to

that of the former section 88(1)(a). The remainder of the substituted section

contains a number of changes to the provisions applicable to a child who is

remanded in custody. It is claimed that the words “as substituted by” should

appear on the face of the Warrant. I am satisfied that this is not necessary. It

is also submitted that there is a more fundamental defect in that s. 88(1)(c)

was relied upon in the heading of the Warrant rather than the correct section

88(1)(a). Section 88(1)(c) refers to a situation when the court decides to

remand a child in custody “in respect of whom the court has postponed a

decision”. This is clearly not such a case. The citation of the subsection is

inappropriate- but is it fatal to the warrant? I do not consider that it is. A want

of form, ambiguity or error may be corrected or resolved by reference to other

documentation or to what actually transpired at a hearing (see The State

(Brien) v. Kelly [1970] I.R. 69 and In re Tynan [1969] I.R 273).For that

reason the slip rule exists and an error such as that which occurred in this

case might be easily corrected by application under the District Court Rules in

that regard. There is in fact no ambiguity or uncertainty as to the order which

the learned District Judge intended to make. It is abundantly clear on the face

of the order. The applicant was being remanded in custody to Oberstown

School, Lusk, County Dublin to appear before Court No. 2, Criminal Courts of

Justice, Dublin 7 at 10.30 a.m. on the 22nd April to be further dealt with in

accordance with law in respect of the two charges attached.”

Judge McDermott also refused relief on a ground that the District Judge failed to take

17 [2014] IEHC 222

18

into account certain matters he was required to consider under S.2(2) of the Bail Act

1997. As part of his rationale for so doing he stated:-

“I do not consider that the failure to utter the words that he was taking

account of the likely sentence that may be imposed establishes such a default

of requirements as to render his decision fundamentally flawed.”

Missing Evidence

The two most significant recent cases both involve Supreme Court appeals.

The first in time is Wall v The DPP18. The Supreme Court split 4:1. Mr. Justice

Hardiman, the sole dissenting voice who would have stopped the trial from

proceeding, commenced his lengthy judgment putting the issues as follows: -

“In my view, this is a case of very great importance. It is about whether the

Gardaí can prosecute a citizen on a serious charge, based on eye witness

testimony alone, without taking what is said to be an obvious step to gather

forensic evidence (fingerprints) which has the potential to contradict the eye

witness testimony. No explanation has been given of the failure to take

fingerprints, or of the destruction of the sole item from which the prints could

have been taken, without even informing the defendant of what was alleged

against him. The appellant, Jason Wall, is a young man from South County Dublin. He has

no previous convictions. He was a back seat passenger in a Honda car driven

by a young woman on her first provisional licence. The car went on to its

wrong side of the road and struck an oncoming vehicle. The front seat

passenger, another young woman, was tragically killed in the impact. The

party in the Honda were returning from a christening celebration in a public

house, about half past midnight one night in mid-August.”

He concluded same inter alia disavowing a proposition that seems to have influenced

his colleague, Mr. Justice O’Donnell, to withhold relief. This proposition had to do

with the role of “culpability”. In this regard Mr. Justice Hardiman stated: -

“At para. 24 of the same judgment my colleague remarks that:

“There is no doubt that if a fingerprint examination had been

carried out, or the vehicle retained, that these arguments could

not have been made, but the question whether a trial should be

prohibited depends on an analysis of the culpability of the

18 [2013] IESC 56

19

omission, and the materiality of the evidence which was not

obtained in the context of the case as a whole.”

I wish entirely to disavow the notion of an analysis of the “culpability” of the

failure to carry out a fingerprint test or failure to retain the vehicle.

Culpability for these things could only be culpability of the Gardaí. There is

no support whatever in the existing jurisprudence for the view that this

jurisdiction exists to police the Gardaí, and I wish to disavow that proposition

entirely. The Gardaí are already subject to the ordinary criminal law, their

own disciplinary code and in some sense to the Garda Inspectorate: another

forum of responsibility is hardly needed. On the contrary, on the existing

authorities, the entire focus of these cases must be whether it has been shown

that the defendant has incurred a real risk of an unfair trial. One cannot

analyse with any precision, either, “the materiality” of evidence which has

been lost or destroyed without examination: as I have said supra, that is why a

“real risk” of prejudice is all that can possibly be shown. The defendant is not

responsible for the loss of the item which should have been examined before

the Gardaí allowed it to be destroyed.”

In the course of his own lengthy and expansive treatment of the issues, Judge

O’Donnell queried why the substantive questions require to be litigated by judicial

review. He stated:

““Why is the issue of missing evidence (and/or delay) dealt with by

way of judicial review?

7. Scrutiny by way of judicial review in anticipation of a trial has obvious

practical and unhelpful consequences both in terms of the delay of any trial,

and the consequential increase in burden upon the Superior Courts. It thus

requires to be justified. However, even assuming a perfectly resourced system

both in trial and appellate courts –and that is an ideal unlikely ever to be

achieved in practice – there are other significant problems with the system of

judicial review when used to determine issues relating to missing or lost

evidence. Judicial review is a system designed, or at least intended, to provide

a speedy determination of issues relating to the jurisdiction of inferior courts.

It is well adapted to determine precise issues of law. It is poorly adapted for

the resolution of factual matters, particularly when those issues are to be

determined in advance of a trial and through the imperfect lens of affidavits

necessarily drafted by professional advisers and which, perhaps

understandably, seek to maximise that party’s case while exercising caution

about revealing testimony capable of being deployed against the party in the

event that a trial might ensue. Looked at from the vantage point of function

and efficiency, it might be thought that the examination of facts and the impact

of the presence or absence of such facts upon the fairness of a trial should

take place in the trial court with the possibility of review on appeal. However,

20

currently, such claims are addressed by judicial review. If the Constitution or

more general principles of fairness demands that this be so, then it must

indeed be so. But it is a process which, at a minimum, requires justification.

8. The doctrinal source of what appears to be a jurisdiction unique to Ireland,

whereby questions of missing and lost evidence are adjudicated in advance

through the mechanism of judicial review, is a single short passage in the

judgment of this court in The State (O’Connell) v. Fawsitt [1986] I.R. 362.

That case involved a challenge to a case then awaiting trial in Cork Circuit

Court not on grounds of missing evidence but because of the undue delay in

securing a trial date, and a consequent alleged prejudice caused by the

absence and unavailability of witnesses. The context of the case, it appears,

was a lack of resources and growing delays in particular at Circuit Court

level rather than any more general principle.

9. In the High Court Murphy J., having carefully reviewed the case and case

law both domestic and international, refused prohibition. He considered it

important that the delay in question was largely located in the delay in having

a case listed for hearing and therefore, only occurred after adjournment

applications made to, and considered by, the trial court. It followed therefore

that the delay was at least being monitored by the court. He expressed the

view that the trial court should, at least in the first instance, deal with the

question of the impact on the case of such delay. He continued:

“… not only would the judge have been conscious of these factors but he

would have been well aware of the powers which a trial judge would have had

to give appropriate warnings or direction to the jury to prevent any injustice

arising as a result of any such defect. Indeed in granting any application for

an adjournment or in permitting the trial to continue at any time in the future

a judge of the Circuit Court has the same duty as this court to recognise and

vindicate the constitutional rights of the accused. Accordingly, if the learned

Circuit Court judge is satisfied that, in all of the circumstances of the case as

established before him, that the delay was excessive or unduly prejudicial to

the prosecutor, it would be the right and duty of the Circuit judge to dismiss

the pending charges and I have no reason to doubt that he will adopt that

course if it is appropriate so to do. In recognising the rights, powers and

duties of the trial court I do not intend in any way to abdicate the functions or

duties of this court. Rather I am concerned that the case made on behalf of the

prosecutor involves a combination of arguments and propositions some of

which involve differences of emphasis if not indeed disputes of facts; others

are based upon problems which are anticipated but either may or may not

materialise or may be resolved at or prior to the trial. It is only the delay

which is an undisputed objective fact and even in relation to that I believe that

it would be preferable for the court which granted the adjournments from time

to time to deal with the matter in the first instance at any rate.” (p. 374)

10. The Supreme Court reversed the High Court decision and allowed the

appeal. In a short judgment, Finlay C.J. (with whom Walsh, Henchy, Griffin

and McCarthy JJ. agreed) quoted a portion of the judgment of Murphy J.,

including the passage set out above up to the words “I have no reason to

21

doubt that he will adopt that course if it is appropriate so to do”. The essence

of the decision of the Supreme Court is to be found in a subsequent paragraph

of the judgment which it is desirable to set out in full:

“I have come to the conclusion that, in this portion of the judgment, the

learned trial judge was in error. I am satisfied that if a person’s trial has been

excessively delayed so as to prejudice his chance of obtaining a fair trial,

then the appropriate remedy by which the constitutional rights of such an

individual can be defended and protected is by an order of prohibition. It may

well be that an equal remedy or alternative remedy in summary cases is an

application to the justice concerned to dismiss because of the delay. In the

case of a trial on an indictable charge, however, I am not satisfied that it is

correct to leave to the trial judge a discretion as to whether, as it were, to

prohibit himself from letting the indictment go forward or whether to let the

indictment go forward. A person charged with an indictable offence and

whose chances of a fair trial have been prejudiced by excessive delay should

not be put to the risk of being arraigned and pleading before the jury.”

(emphasis added) (p. 379)

11. It is not apparent why the uncontroversial conclusion that judicial review,

is capable of being an appropriate remedy in cases of missing evidence or

delay, should necessarily lead to the conclusion that it is the exclusive remedy.

Furthermore, the rejection by the Supreme Court of the High Court’s

reasoning in The State (O’Connell) v. Fawsitt relying on the capacity and

indeed duty of the trial judge to guarantee the fairness of the trial, is not easy

to reconcile with subsequent repeated statements in this court emphasising the

role of the trial judge in ensuring such fairness: See for example Dunne v.

Director of Public Prosecutions [2002] 2 I.R. 305, p. 336, per Fennelly J.;and

D.C. v. Director of Public Prosecutions [2005] 4 I R. 281, p. 283, per Denham

J.; and indeed the judgment of Finlay C.J., in Daly v. Director of Public

Prosecutions (11th April 1994) in which he appeared to endorsed similar

observations made by the High Court judge in that case as to the duty of a

trial court to ensure fairness. Nor is it readily apparent what logical

justification there is for the distinction drawn between trials in the District

Court and trials on indictment, both of which are required to adhere to the

constitutional standard of trial in due course of law.

12. The logic of the decision in The State (O’Connell) v Fawsitt, in identifying judicial review as the exclusive remedy, also leads to an unusual situation

where it is sought to challenge trials occurring in the Central Criminal Court

on the grounds of missing or lost evidence or indeed delay. Since the basis of

judicial review is the power of the High Court to exercise control over inferior

courts and tribunals acting in excess of jurisdiction, such review is not

available in respect of decisions of the High Court itself. Accordingly it has

become the practice that an applicant in such a case seeks instead to prohibit

the Director of Public Prosecutions from continuing with such a trial. But at

least from a conceptual level, this seems to blur the distinction between the

prosecutor and the trial court.There is much to be said for the observation

that prosecutors prosecute cases, trial courts try cases, appeal courts hear

22

appeals, and the Superior Courts have a residual power of review whether by

way of prohibition in advance, or certiorari afterwards, and it is unhelpful to

confuse those roles. It is the court not the prosecutor which has the obligation

and the jurisdiction to conduct the trial.

13. Indeed, while it is not necessarily a touchstone for the correctness of any

result, I consider that if the trial courts had a jurisdiction to dismiss an

indictment or stay a prosecution on grounds of missing or lost evidence, that

could also be in the interests of all parties including potential defendants.

There is much to be said for a situation where the decision as to whether or

not a trial can be conducted fairly is made by the very person under a duty to

ensure that if such trial proceeds it will be fair in fact, and not just in theory,

and who furthermore can keep that decision under review as a case develops.

Also, the division of function which the current law permits between Superior

Courts exercising what is now recognised as exceptional jurisdiction in

advance of trial, and a residual jurisdiction in a trial court, can be unhelpful.

A trial court, when or if, it comes to address questions of unfairness by reason

of the absence of evidence, may feel constrained by the prior determination on

the judicial review. There is much therefore, to be said at both a practical and theoretical level, for the trial court having the initial jurisdiction to determine

the impact on the trial of the absence of evidence.

14. Since I agree that the experience of other common law jurisdictions can

shed valuable light on issues which are required to be determined by this

court, it is, I think, significant that in other jurisdictions, such as, Northern

Ireland (R v. Mc Nally and Mc Manus (2009) N.I.C.A. 3; R v Glen [ 2003]

NIJB 99), England and Wales (R (Ebrahim) v. Feltham Magistrates

Court [2001] E.W.H.C. Admin 130), Australia (Jago v. District Court of

NSW (1989) 168 C.L.R. 23 and The Queen v. Edwards [2009] H.C.A. 20),

New Zealand (Hazlewood v. The Queen [2013] N.Z.C.A. 406) and of course

the United States of America (Brady v. Maryland 373 U.S. 83

(1963), California v. Trombetta 467 US 479 (1984) and Arizona v.

Youngblood 488 U.S. 51 (1988)), it appears that the issue is addressed by

motion or application at or in the trial, and then is subject to appeal in the

ordinary way. Irish law however, requires the matter to be addressed

primarily and almost exclusively, through what might be thought to be the

imperfect and ill adapted lens of judicial review on the basis of affidavit

evidence alone. That position, in my view, requires detailed analysis careful

scrutiny and justification.”

Mr. Justice Clarke endorsed Mr. Justice O’Donnell’s comments stating:

“2. However, I also wish to indicate my agreement with the observation of

O’Donnell J. to the effect that the jurisprudence in this area deserves, as he

puts it, “a comprehensive re-examination”.

3. While this case can, for the reasons advanced by MacMenamin J., be dealt

with without any such re-examination and while, therefore, I would leave to

23

another case where any such re-examination might prove decisive, a final

judgment as to what the results of any such re-examination should be, I

nonetheless would record my agreement with the analysis of the authorities

both in this jurisdiction and others engaged in by O’Donnell J.”

Lest it be thought however that Wall sounded the death-knell for judicial review

applications on such matters, Mr. Justice MacMenamin, who was part of the majority

in Wall and who delivered his own detailed judgment on the issues, delivered last

February the unanimous judgment of the Court in Stirling v Judge Collins & The

DPP19 where because of missing evidence the trial was stopped. The Court stated: -

“18. This is not just a case where prejudice and, therefore, risk is probable,

but rather it is inevitable. The entire essence of the prosecution and defence

must be identification; the only objective verifying evidence has become lost

through neglect and failure to preserve the material.”

Strike out

In DPP v Judge Martin Nolan & Brendan Reynolds20 Mr. Justice Hedigan quashed

the decision of the Respondent Judge to strike out the proceedings due to the failure

of the investigating Garda to attend a sentence hearing. The Notice Party Mr.

Reynolds had been returned for trial. He had pleaded guilty and been remanded in

custody for sentence. Judge Nolan subsequently rejected an application to re-enter.

The Court stated: -

“My sympathies lie with the trial judge in this case. It is entirely

unacceptable that an apparently cavalier attitude on the part of the

prosecution side resulted in their being unable to proceed with the

sentencing of the notice party who had at that stage been in custody

for over a year…

I am however satisfied, that the learned judge did not have the

power to quash the return for trial or the indictment because of the

delay involved. I do not think he thought that he did. But by refusing to

let the matter be re-entered before him that, in effect, is what he is

doing. All that he can do in such circumstances in my view is to strike out

the proceedings before him”.

19 [2014] IESC 13 20 (Unreported 29/72013)

24

This decision’s significance lies not least in it’s apparent confirmation that a form of

strike out jurisdiction is there to be exercised by Circuit Judges dealing with sentences

on indictment. The precise parameters of this jurisdiction, and it’s interaction with

the availability of judicial review, may very well fall to be considered again.

Pitfalls & the exercise of discretion

Illustrative of the care and attention that must accompany the planning and

presentation of an application for judicial review are the decisions in McDonagh v

Watkins & Ors21 and Farrell v District Judge Reilly & The DPP22 . McDonagh

concerned a challenge to a decision not to revoke a bench warrant which had issued in

circumstances where the defendant was not present at first call. In the case of Lado,

mentioned in Kearns P.’s decision, a somewhat similar factual scenario had warranted

relief. In McDonagh however the President distinguished Lado.

The DPP resisted relief inter alia on the grounds of material non-disclosure of

relevant facts. In this regard Ms. McDonagh failed to refer in her papers to the fact

that the bench warrant had in fact been executed before the ex parte leave application

was moved.

The President refused relief on the merits stating: -

“Again, I am satisfied that the respondent judge, obliged as all judges of the

District Court are, to ensure that bail conditions are adhered to, was acting

within her jurisdiction and not irrationally in making the particular

determination which she did make. Another judge might have taken a different

course, but I do not think the proportionality requirement in

the Meadows case can be relied upon to convert this application into an

appeal on the merits. It must be a clearly disproportionate decision when seen

in context and in the light of the judge’s own need to manage and dispose of

her list efficiently. To put it another way, a district judge’s working day should

not be consumed by applications to revoke warrants where defendants have

failed to turn up to court at the appointed time with the inevitable consequence

that a warrant issued.”

But he was also moved to conclude with the following: -

21 [2013] IEHC 582 22 [2014] IEHC 228

25

“While that disposes of the case in itself, I am also of the view that the court

should not exercise its discretion to make any form of declaration in this case

for reasons of culpable nondisclosure by the applicant herself of material

facts. In so concluding I would repeat that I am not attributing mala fides or

lack of candour to the applicant’s legal advisors. Nonetheless, there was a

non-disclosure which was of a very serious type and which arose from a lack

of seriousness on the part of both the applicant and her solicitor about the

process being undertaken. The failure to approach this application with due

care and regard for the process further warrants in my view the decision to

refuse to grant the relief now sought.”

Farrell concerned a challenge to the imposition of a driving ban. The positions

adopted by the applicant and respondent were put as follows in the judgment

delivered by O’Neill J.: -

“6. Counsel for the applicant argues that the decision of the first named

respondent and the sentence imposed on the applicant was based on a

fundamental mistake as to fact i.e. the first named respondent operated on the basis of the applicant having a previous conviction for driving with no

insurance when this was not correct. As a result, the applicant submits that he

was given a mandatory two-year disqualification and was denied the

opportunity to present special reasons to the court which he would otherwise

have been able to do in relation to a first conviction. It is contended by the

applicant that once he put Garda Noonan on notice that the 2003 conviction

was in dispute, it was the duty of the garda, as prosecutor, to bring this to the

attention of the District Judge before sentencing, and to provide specific proof

of this offence. The applicant submits that the matter should be remitted for a

full rehearing in which the applicant is treated as having no previous

conviction for driving without insurance, thus enabling the District Judge to

consider the full range of sentencing options in exercising her discretion

pursuant to s. 65 of the Road Traffic Act 2010.

7. Counsel for the respondent submits that the applicant’s claim, as set out in

his initial statement of grounds, is fundamentally different to the case that has

been made to this court, and for that reason, the relief sought should be

refused. It was submitted that there are a number of material inaccuracies in

the applicant’s affidavits as well as a lack of candour warranting the

dismissal of the applicant’s case. In addition, counsel for the respondent

submits that the first named respondent did not fall into error, either of law or

fact, and did not exceed her jurisdiction. It is further submitted that the

applicant acquiesced to the evidence of the prosecuting garda and that he

subsequently failed to avail of an alternative remedy. For those reasons, the

respondent contends that the relief sought should be refused.”

Essentially O’Neill J. withheld relief on the bases advanced by the DPP. In relation to

the doctrine of ‘acquiescence’ or waiver, a common battle- round in judicial review,

he stated (para.42):

26

“42. The final question which arises is whether the applicant acquiesced in the

manner in which the case was dealt with in the District Court, so that he

cannot now be heard to complain about that to which he acquiesced. There is

no doubt that the applicant was made aware in advance that Garda Noonan

was going to raise the previous conviction. There is equally no doubt the

applicant did not mention to the first named respondent any concern or

dispute concerning this conviction as he had apparently done outside the

Court to Garda Noonan. It is also clear he was given an ample opportunity by

the first named respondent to speak on his own behalf and, specifically, to tell

her of his personal circumstances. It is difficult to understand why it is, that if

he really wished to dispute this conviction, or if he merely had a real concern

as to whether it applied to him, that he did not say to the first named

respondent that this conviction did not relate to him, or that he believed that to

be the case. If he had made that very simple utterance, it is highly probable

that first named respondent would not have proceeded to impose a penalty,

but would have adjourned the matter so that that issue could be clarified. In

my opinion, the applicant’s silence in these circumstances amounted to acquiescence in the manner in which the matter was dealt with by the first

named respondent and would be a further factor moving this Court to exercise

it’s discretion against granting the relief sought.”

Legal aid and decisions made to withhold same often form the basis for judicial

review applications. In this regard and notwithstanding the decision in Olesja

Cerkovska v Minister for Justice & Ors23 arose in the context of European arrest

warrant proceedings, the basis upon which relief was withheld should be of note to

those at the criminal bar.

Ms. Cerkovska was aggrieved because she could not get pre-sanction covering the

payment of an expert (psychologist) report via the Attorney General’s Scheme and

later when that scheme was replaced by the Legal Aid (Custody Issues) Scheme.

However as is normal at the commencement of EAW proceedings, the Applicant had

intimated a desire that the Court recommend payment under the scheme. The Court

had confirmed it’s intention to grant the necessary recommendations for payment.

A number of preliminary objections were put up by the Minister essentially relating to

arguments that the Applicant’s case was premature and not evidence based.

Dismissing the application for judicial review Mr. Justice Edwards stated inter alia: -

“There is simply no evidence that the respondent has been unable to retain an

appropriate expert on account of the terms of the Legal Aid (Custody Issues)

Scheme. There is no evidence concerning either the number of experts that

were approached or as to their identities. We are not told if such experts as

were approached were informed of the terms of the Legal Aid (Custody Issues)

Scheme. Neither are we told whether they were requested to provide their

23 (Unreported Edwards J., 21/5/14)

27

services on the basis and understanding that payment for same would be

contingent upon, and subject to, a recommendation being obtained in that

regard from the Court at the end of the case under Article 13 of the scheme,

and authorisation of payment by the third named respondent following such

recommendation. There is no indication that any expert approached declined

to provide his services on that basis. Moreover, the evidence of the solicitor as

to her belief that she will have to personally fund the outlays involved in order

to obtain the necessary report(s) is not backed up. She does state any basis for

that belief. She provides no evidence to suggest that any expert approached

has sought to insist on payment of his or her fees “up front”. Moreover, she

does not state that she herself has felt compelled to enter a contractual

relationship with an expert in the interests of her client and has actually done

so. Neither does she state that she has incurred any actual outlays to date on

her client’s behalf in connection with the obtaining of expert evidence.

Finally, although counsel for the applicant has spoken about what he

characterises as “the profoundly disincentivising effect” of the provision

complained of, there is no evidence that the applicant in this case has been

disincentivised. There is no suggestion that she does not intend to pursue her

Article 8 based s. 37(1)(a) objection on account of any perceived obstacle in

her way.

In summary, there is no evidence that the applicant has suffered, is suffering or will as a matter of likelihood suffer, actual prejudice on account of any

alleged unlawfulness in either the structure or operation of Legal Aid

(Custody Issues) Scheme. Moreover, in circumstances where the applicant has

not been refused payment of an expert’s fees by the third named respondent, a

prior recommendation having been obtained from the Court that such fees

should be paid, she cannot make the case that the respondents have fettered

their discretion in some unlawful manner. The correspondence from the Chief

State Solicitor quoted earlier in this judgment could at most create an

apprehension in the mind of the applicant that a problem might conceivably

arise at some point in the future if and when a request for payment were to be

made on foot of a recommendation obtained from the Court. However,

notwithstanding the somewhat infelicitous and strident terms of some of the

representations made by the Chief State Solicitor’s office, in particular those

contained in the e-mail of the 23rd of July 2012, account has to be taken, in

assessing the reality of any such apprehension, of the evidence of Mr

Gilheaney adduced by the respondents. His evidence is emphatically to the

effect that claims for payment of expert’s fees are, and will continue to be,

assessed by the third named respondent in a fair and open minded manner and

that due regard will be had by the Legal Aid Board to any recommendations

by the Court including any specific recommendations in relation to any expert

reports. These representations and assurances are proffered on behalf of all of

the respondents, including the second named respondent who is the senior law

officer in the State. Assurances were previously given to the Supreme Court on

behalf of the second named respondent in Minister for Justice, Equality and

Law Reform v Olsson [2011] 1 IR 384 concerning the manner in which the

then Attorney General’s Scheme operated, and would continue to be operated,

and were readily accepted. The Court sees no reason to doubt the sworn

28

representations of Mr Gilheaney, and therefore any apprehended future

problem with payment of an expert’s fees must be regarded as theoretical at

best, and on the evidence presently before the Court that the risk apprehended

is more perceived than real.

In conclusion, the Court’s view is that the applicant’s proceedings are indeed

premature in as much as she cannot establish that she has suffered, or will

inevitably suffer, or will suffer even as a matter of likelihood, any actual

unfairness or breach of her rights in the circumstances that she puts forward.

The evidential deficit identified by counsel for the respondents is real and

incontrovertible in this Court’s determination. In the circumstances the

preliminary objections must be upheld and applicant’s claim must therefore be

dismissed in limine. It not necessary, or appropriate, that the Court should

proceed with any further examination of the applicant’s claims.”

Cases Stated

“High Court casts doubt on a number of speeding summonses”24

Road traffic prosecutions appear still to make up the majority of cases referred to our

High and Supreme Courts for answers to discrete questions of law. The most recent of

note, and a judgment which both emphasises once more that penal statutes must be

construed strictly and serves to illustrate the growing role and prevalence of

presumptions in prosecutions of this kind, is that provided by DPP v Michael

Gilvarry25.

The accused was prosecuted for a speeding offence. His solicitor raised an issue over

service of the image provided by the prosecution. She also raised an issue over the

contract between the Minister and the Go Safe Company and over enhancement of the

images. As a result of the various arguments put to Judge Devins, as outlined in the

judgement, she decided to consult the High Court and raised the following questions

for consideration: -

1. Was there evidence before the court that the permanent visual record

referred to in section 81(2)(ii) of the Road Traffic Act 2010 was served on

the accused as required by section 81(3) of the same Act?

2. Is it a necessary proof for the prosecution in a case such as this to

hand in a copy of the contract between Go Safe and the Minister for Justice or is it sufficient to give evidence of the existence of the contract?

3. Is the permanent visual record produced tainted by virtue of the fact

that it is enhanced after downloading to the server?

It was held by the President that the questions be answered as follows:

24 Rte.ie 11/7/14 25 (Unreported Kearns P., 11/7/14)

29

1. No. - However, he went on to say that the evidential shortfall could be

easily remedied if the statutory declaration of service of the summons was also to

state that the summons "together with permanent visual record attached" have been

served on the defendant prior to trial.

2. No. It is sufficient that some evidence of the existence of the contract

be given.

3. Does not arise.

Prison

In Connolly v Governor of Wheatfield Prison26 Mr. Justice Hogan posed the question

for determination as follows:

“Is the detention of the applicant under conditions of what amounts to solitary

confinement for all but one hour in the course of a day such a manifest

contravention of the State’s duty to protect the person under Article 40.3.2 of the Constitution such as would entitled him to immediate release? That, in

essence, is the question posed in the course of these Article 40.4.2

proceedings.”

Mr. Connolly was a prisoner who feared homophobic victimisation. He opted for a

“restricted regime” because of personal concerns for his own safety. 23-hour lock –up

was a consequence.

In elegant and eloquent terms Mr. Justice Hogan discussed “Article 40.3.2 and the

protection of the person” against which the Article 40.4.2 application was considered:

-

“14. Here it must also be recalled that the Preamble to the Constitution seeks

to ensure that the “dignity and freedom of the individual may be assured.”

While prisoners in the position of Mr. Connolly have lost their freedom

following a trial and sentence in due course of law, they are still entitled to be

treated by the State in a manner by which their essential dignity as human

beings may be assured. The obligation to ensure that the dignity of the

individual is maintained and the guarantees in respect of the protection of the

person upheld is, perhaps, even in more acute in the case of those who are

vulnerable, marginalised and stigmatised.

26 [2013] IEHC 334

30

15. While due and realistic recognition must accordingly be accorded by the

judicial branch to the difficulties inherent in the running of a complex prison

system and the detention of individuals, many of whom are difficult and even

dangerous, for its part the judicial branch must nevertheless exercise a

supervisory function to ensure that the essence of these core constitutional

values and rights – the dignity of the individual and the protection of the

person – are not compromised: see, e.g., Creighton v. Ireland [2010] IESC 50,

per Fennelly J.

16. The obligation to treat all with dignity appropriate to the human condition

is not dispensed with simply because those who claim that the essence of their

human dignity has been compromised happen to be prisoners. That, in

essence, is the basis for the decision of Barrington J. in The State

(Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82 where the

judge found that the presence of human excrement in the basin in which

prisoners were expected to wash and clean their teeth. Barrington J. found

that the applicant’s “rights under the Constitution and the law [had] been

violated”: [1980] I.L.R.M. 82, 93. This would, I think, now be classified as a

case where the substance of the applicant’s right to the protection of the person in Article 40.3.2 had been violated, certainly as read in conjunction the

Preamble’s guarantee in respect of the protection of the dignity of the

individual. What could be more undignified – indeed, degrading - than the

obligation to wash in the presence of the human excrement?

17. For even though prisoners may have strayed from the path of

righteousness and even though – as with the case of Mr. Connolly – they may

have severely and wantonly injured other persons, the protection of the dignity

of all is still a vital constitutional desideratum. This is because the

Constitution commits the State to the protection of these standards since it

presupposes the existence of a civilised and humane society, committed to

democracy and the rule of law and the safeguarding of fundamental rights.

Anyone who doubts these fundamental precepts need only look at the

Preamble, Article 5, Article 15, Article 34, Article 38 and the Fundamental

Rights provisions generally.

18. All of us are, of course, sadly aware of the great failures of the past and

the present where these rights seemed and seem like hollow platitudes. But

this is not quite the point, since it is by upholding these values and rights that

we can all aspire to the better realisation of the promise which these noble

provisions of the Constitution hold out for us as a society.

19. In Kinsella I held that the essence of these constitutional rights had been

compromised in that case given the conditions of the applicant’s custody

([2012] 1 I.R. 467, 470-472):

“So far as the present application is concerned, it is the State’s duty to

protect and vindicate the person of Mr. Kinsella which is principally

engaged here, although I do not overlook the fact that the applicant’s

present conditions of confinement also arise, in part, at least, from the

31

State’s duty to protect his right to life and, perhaps, the life of other

persons as well. Yet it is undeniable that detention in a padded cell of

this kind involves a form of sensory deprivation in that the prisoner is

denied the opportunity of any meaningful interaction with his human

faculties of sight, sound and speech - an interaction that is vital if the

integrity of the human personality is to be maintained. I use the term

“a form of sensory deprivation” advisedly, because it is only fair to

say that confinement in such conditions as Mr. Kinsella has had to

experience is nonetheless very far removed from the “five techniques”

of sensory deprivation - such as intentionally subjecting the prisoner to

constant “white” noise, sleep deprivation and the hooding of prisoners

- condemned by the European Court of Human Rights in Ireland v.

United Kingdom (1978) 2 EHRR 25 as inhuman and degrading

treatment and, hence, a breach of Article 3 ECHR.

By solemnly committing the State to protecting the person, Article 40.3.2 protects not simply the integrity of the human body, but also the

integrity of the human mind and personality. Counsel for the

Governor, Mr. McDermott, observed in argument that no expert

evidence had been led by the applicant with regard to the

psychological harm which he might suffer. That is true, but it must be

recalled that this application is one which of necessity was made as a

matter of considerable urgency, so that the possibility of

commissioning such an expert report within the short time period was

probably not a realistic possibility. Moreover, one does not need to be

psychologist to envisage the mental anguish which would be entailed

by a more or less permanent lock-up under such conditions for an

eleven day period. Nor, for that matter, does one need to be a

psychiatrist to recognise that extended detention over weeks under

such conditions could expose the prisoner to the risk of psychiatric

disturbance.

While making all due allowances for the exigencies of prison life and

the difficult and unenviable task of the prison service in making

complex arrangements for a wide variety of different prisoners with different needs and who often must be protected from one another, it is

nonetheless impossible to avoid the conclusion that a situation where a

prisoner has been detained continuously in a padded cell with merely a

mattress and a cardboard box for eleven days compromises the

essence and substance of this constitutional guarantee, irrespective of

the crimes he has committed or the offences with which he is charged.

This is not to suggest that such a cell might never be used. Clearly

somewhat different considerations may well arise in the case of

disturbed prisoners or where other prisoners need to be

accommodated on a temporary emergency basis for perhaps a day or

two. But detention in such conditions for well over a week fails to meet

the minimum standards of confinement pre-supposed by the

32

constitutional guarantee in relation to the protection of the person

contained in Article 40.3.2. I accordingly find that the conditions

under which Mr. Kinsella have been detained constitute a violation of

his constitutional right to the protection of the person and that the

State has failed to vindicate that right in the manner required by

Article 40.3.2 of the Constitution.””

The Court however found that Mr. Connolly was detained in accordance with

law on the following bases: -

“…it is sufficient to say that the placing of prisoners in solitary confinement

(or, as here, something approaching solitary confinement) must generally be

regarded as an exceptional measure which requires monitoring and regular

review by the prison authorities. As illustrated by Kinsella, complete sensory

deprivation - such as, as happened in that case, by placing the prisoner in a

padded cell with no access to any facilities whatsoever or to any natural light

– will generally be held to compromise the essence of the prisoner’s Article

40.3.2 rights if this were to continue beyond a matter of days.

25. As we have already noted, the applicant’s own personal conditions are

immeasurably better than those of the applicant in Kinsella. In that respect, he

has not suffered anything like the almost complete sensory deprivation which

was a feature of the latter case. It is also clear that Mr. Connolly’s case is kept

under regular review and that the prison authorities are anxious that he would

leave the present restricted regime and re-enter the general prison population.

It is also clear from the extensive clinical notes that the professional

psychologists attached to the various prisons have shown him considerable

care and attention and seem totally devoted to his welfare.

Conclusions

26. In these circumstances, it cannot presently be said that the circumstances

of Mr. Connolly’s present detention violate the substance of the guarantees of

Article 40.3.2 to protect the person, even if he is denied effective access to

human contact for 23 out of 24 hours. Mr. Connolly has, however, now been

so detained – even if it has been at his own request – under these conditions

for the best part of three months. Doubtless the longer Mr. Connolly is so

detained the more carefully and intensely his case will be considered and

reviewed by the prison authorities who, it may be assumed, will be on guard

for signs of psychological or psychiatric distress.

27. Yet if Mr. Connolly’s detention under these conditions were to continue

indefinitely for an extended period of months with no sign of variation, the

point might very well come in which the substance of these constitutional

guarantees would quickly be compromised and violated. It would, however, be

33

premature just yet to anticipate what might yet materialise at some future time

or in some future case.

28. Nevertheless in these present circumstances and based on the particular

facts of the present application, I must find that the applicant is detained in

accordance with law for the purposes of Article 40.4.2 and I must accordingly

refuse the application for his release.”

In Wayne Dundon v The Governor of Cloverhill Prison & Others27 the

applicant challenged roughly a 5 month period whereby he claimed that in

breach of Rule 62 of the Prison Rules 2007 he was removed by the Governor

from structured activities, communal recreation and association with other

prisoners. He claimed that throughout the relevant period he was, as a matter of

fact, detained in conditions envisaged by Rule 62, without however having the

benefit of the procedures and safeguards provided by the Rule.

In response mootness was pleaded by the Respondents. In this regard they

claimed Rule 62 was formally invoked prior to the moving of the leave

application and that the applicant had been transferred to a different prison.

They also pleaded and argued that there impugned actions were in any event

lawful.

Mootness is a recurrent theme in judicial review applications, whatever the

locus of the litigation. As we saw above, it featured greatly in the Supreme

Court decisions in Farrell. The concept also received detailed analysis in the

Supreme Court decision in Lofinmakin (A Minor) v MJELR28.

Delivering the judgment of the Court in Dundon Ms. Justice O’Malley was clear

that the proceedings could not be considered moot stating: -

“Conclusions on mootness

61. It is clear that the policy of the courts is to decline to hear cases

which are purely hypothetical or academic. It is, however, equally

clear that a case is not moot if the controversy still affects or

potentially affects the rights of the parties.

62. The applicant in this case is still a prisoner and is still subject to

the provisions of the Prison Rules in whichever institution he is

27 [2013] IEHC 608 28 [2013] IESC 49

34

detained. He has a real and ongoing interest in the manner in which

they are applied to him. Having regard to the history of the case, it

may be said that the possibility that he will again be subjected to

restrictive conditions is not, to use the language of 0'Brien v PIAB, so

remote as to be purely hypothetical.

63. It also seems that this is the sort of situation where, if the court

does not relax the strict rules of the doctrine, this important issue

might not be capable of being determined. In this regard I have in

mind the fact that the Governor in this case has told the court that he

invoked Rule 62 as a "pragmatic" reaction to the initiation of

litigation, hoping to thereby save the time and expense involved. (From

the respondents' point of view it was necessary to establish this as a

fact lest it be thought that there was any concession involved as to the

lawfulness of the previous regime.) I do not want to be taken as

deciding in this case that that was necessarily improper but it points to

the possibility that in cases such as this the issue is one that may

"evade capture", in the American phrase, if an overly strict view is

taken of mootness.”

On the merits Ms. Justice O’Malley was equally clear that some form of judicial

review relief was merited, stating: -

“…The question is whether a Governor may restrict the normal life of

a prisoner, as envisaged by the Rules, without recourse to the

provisions of the Rules that specifically permit such restriction.

79. In Devoy, it was accepted by the respondent, and held by Edwards

J. that there is a "presumption" arising out the combination of Rules

27 and 62 in favour of a prisoner being permitted to associate with

other prisoners. On the authority of Devoy I conclude that where a

restriction on such association reaches the point at which Rule 62

becomes applicable, it should be invoked so that the notification and

oversight provisions take effect.

80. For the avoidance of doubt it should be made clear that the courts

have no role in the micro-management of these issues. It is also

accepted that a prison setting is fluid. Prisoners come and go, whether

by way of release or transfer, movement to another part of the prison

or travelling to court or hospital etc. The status of a prisoner

remaining in the unit does not alter with each such development.

However, it may be of assistance to recall that Rule 62 requires a

weekly review. It seems to me that where a prisoner's situation is de

facto akin to a Rule 62 regime for a period of days approaching that

length of time, and does not appear likely to change within it,

consideration must be given to formalising the regime.

35

81. The situation in this case appears to have been that the applicant

was placed in a high security part of the prison and I see no reason to

criticise the Governor's decision in that regard. While in there he

could associate only with other prisoners similarly placed. I also

accept that, within the context of that placement, there was likely to be

a degree of change from time to time, as prisoners came and went.

There were times during the period in question when the applicant had

the company of a number of other men. However, the fact that stands

out is that for much of the period he had association with only one

other prisoner on a continuous basis, with some contact with one other

man. During such times, he seems to have been in a comparable

position with the applicant in Devoy, if not slightly worse given that he

had no educational activity. I consider it to be highly relevant that the

applicant's situation did not change in any material way after the

formal decision to place him on Rule 62, whatever the motivation for

that decision was.

82. It may well be that the applicant asked for education only at

inopportune times from the point of view of the authorities, but it appears from the Governor's affidavits that in any event nothing would

have been available until September, and no guarantee could be given

that he would receive anything then. This is a material consideration

when one is examining the potential effect on a prisoner of restrictions

in relation to association and recreation.

83. It seems to me that where a Governor maintains a high security

unit of this nature, it is necessary to monitor the situation of prisoners

in it. Where, as in this case, the numbers in the unit drop and a

prisoner is not authorised to engage in education, work or training, it

is incumbent on the Governor to consider either relaxing the regime to

which the prisoner is subject or invoking Rule 62 if the conditions for

such invocation exist. Assuming, from the way that this case ran, that

the Governor was unwilling to do the former, I conclude that he should

have made a formal decision in relation to the latter - on the evidence

presented, he had grounds for so doing from at least the 9th May,

2013. This would have conferred upon the applicant the protection

involved in regular review and notification and, if the situation

continued for more than three weeks, the oversight of the Director of

the Prison Service.

84. It was urged upon the Court that the applicant had access to

generous family visits and could have had more, had he made

application in the proper way. I should perhaps state here that I do not

consider that the applicant has made out any legitimate complaint in

relation to family visits. However, the Rules concerning structured

activities and association are separate to those relating to family visits.

36

85. I should also say that, for the same reasons as in Devoy, I do not

consider that the applicant has established any breach of his

constitutional rights.

86. I will hear the parties further as to the content of the declaration to

be made.”

Remission

We start and finish with judgments delivered by Mr. Justice Max Barrett. On the

2nd of July 2014 he delivered the judgment of the High Court in Edward Ryan v

Governor of Midlands Prison29. Mr. Ryan sought release pursuant to Article

40.4.2 of The Constitution 1937. His case concerned a challenge by Mr. Ryan to

the decision of the executive not to afford him additional remission. 23

conclusions led to his release: -

“(1) under Rule 59(2) of the Prison Rules 2007, the Minister for Justice and

Equality is empowered to grant additional remission to prisoners when a

prisoner has shown good conduct by engaging in authorised structured

activity and the Minister is satisfied that, as a result, the prisoner is less likely

to re-offend and will be better able to reintegrate into the community following

release;

(2) the Minister is required to use that power in a manner consistent with the

purpose of the statutorily grounded remission regime;

(3) the policy behind Rule 59(2) appears to be one of seeking to incentivise

and reward engagement by prisoners in a pro-active manner in authorised,

structured, voluntary activity, with a view to ensuring that they are less likely

to re-offend and better able to reintegrate into the community following

release;

(4) the information put to the Minister for Justice and Equality prior to his

determining, pursuant to Rule 59(2), whether or not to grant additional

remission to Mr. Ryan, was largely deficient;

29 [2014] IEHC 338

37

(5) Mr. Ryan has engaged in various authorised, structured, in-prison

activities;

(6) Mr. Ryan has not engaged in certain authorised, structured, in-prison

activities because they coincide in time with, or are less attractive to him as an

individual than, others;

(7) all authorised structured activities, it is clear from Rule 27(2) of the Prison

Rules, have as their equal object making a prisoner “when released from

prison, less likely to re-offend or better able to re-integrate into the

community”;

(8) despite this equality of object, it appears from the argument and evidence

in these proceedings that some authorised structured activities are viewed by

the authorities as better than others when it comes to ensuring that a prisoner

is less likely to re-offend and better able to reintegrate into the community

following release;

(9) the fact that some authorised structured activities are apparently so

preferred was never advised to Mr. Ryan, nor does it appear that this fact has

ever been advised to the general prison population;

(10) there is no suggestion that any one of the many authorised structured

activities offered by the Prison Service is in any way deficient as regards

ensuring that a prisoner is both less likely to re-offend and so better able to

re-integrate into the community following release;

(11) the exercise of a jurisdiction to commute or remit sentence is a

constitutionally reserved function which, by virtue of statute, rests with the

Minister for Justice and Equality, and the Minister’s views as to the status and

merits of a prisoner will typically determine the issue of whether a prisoner

should be granted remission and also the extent of any such remission;

(12) the control and management of the nation’s prison system, and of

prisoners within that system, has been entrusted by the Oireachtas to the

Executive and is an area in which the Executive enjoys a wide discretion,

subject of course to the Constitution and the law;

(13) the Minister in reaching his decision on Mr. Ryan’s application for

additional remission had before him deficient information to which he ought

not to have had regard, and also did not have regard to certain information

(the full truth as to Mr. Ryan’s participation in authorised, structured, in-

prison activities) to which he should have had regard;

(14) the Minister, in stating, as he did, that he would only exercise his power

under Rule 59(2) “sparingly and in the most exceptional cases”, has imposed

a pre-condition to, or fetter on, the exercise of his discretion that is irrational

in circumstances where the purpose of Rule 59(2) is to encourage as many

prisoners as possible to avail of the opportunities provided by authorised

38

structured activities so that they may rehabilitate themselves and so lessen the

chance of their re-offending, and better their prospects of reintegration, post-

release;

(15) by viewing the application of the Rule 59(2) discretion as something to be

exercised exceptionally, the Minister has in effect re-written Rule 59(2) so that

the facility of up to one-third remission thereunder is now reserved for an

undefined class of prisoners who meet some vague standard of exceptionality;

this ‘re-writing’ distorts, and may largely obviate, the availability of remission

under Rule 59(2) notwithstanding that a prisoner satisfies the various

requirements of same;

(16) to the extent that the Minister has (i) acted irrationally or (ii) fettered his

role or (iii) preferred one form of authorised structured activity over another

when such preference was never previously advised to Mr. Ryan or, it

appears, the general prison population, the court considers that this case

presents with that capriciousness, arbitrariness or, at the very least,

unjustness, to which McCarthy J. refers in Murray v. Ireland [1991] I.L.R.M.

465 at p.473, his judgment in this regard later being referred to with approval

by Hardiman J. in Kinahan v. Minister for Justice [2001] 4 I.R. 454 at p.459;

(17) a decision-maker in its actions can achieve such capriciousness,

arbitrariness or unjustness aforesaid, notwithstanding that somewhere in the

spray of reasons offered by a decision-maker there are drops of rationality;

(18) if one winnows away any deficient information on which the Minister

relied and has regard to such correct information on which he ought to have

relied, there is only one possible logical conclusion that the Minister could

have reached pursuant to Rule 59(2), namely that Mr. Ryan had participated

in various authorised, structured, in-prison activities, which activities have the

aim and, it appears not to be disputed, the effect of reducing recidivism or

facilitating post-imprisonment reintegration into the community; thus through

his participation in those courses it could only be that Mr. Ryan was less likely

to re-offend and so better able to reintegrate into the community;

(19) in this last regard the court is not substituting its opinion for the opinion

of the Minister; rather it is recognising the logical reality that if the Minister

had regard to the correct information that ought to have been before him and

did not have regard to the deficient information that was in fact before him, he

could only have arrived at the above-stated conclusion;

(20) the fact that there is a discretionary element under Rule 59(2) as to the

extent of the remission to be applied (being up to one-third of the total

sentence) does not alter the conclusion that a degree of remission earned but

irrationally and unjustly refused taints the balance of the term of

imprisonment with illegality; certainly the entirety of the balance of sentence

remaining cannot be lawful;

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(21) the fact that Mr. Ryan elected to avail of the broadness and flexibility of

the Article 40.4.2˚ jurisdiction, rather than seek adjudication on his complaint

by way of judicial review proceedings, is not a matter with which the court

finds fault;

(22) there is no legal or other pre-requisite to habeas corpus applications that

a party who considers that he is being unlawfully detained, or his advisors,

should engage in potentially protracted correspondence with the Executive

during the period of that alleged illegal detention so that he can gauge more

accurately whether his suspicions as to the legality of his continuing detention

are in fact correct;

(23) as the remainder of Mr. Ryan’s continued detention at Midlands Prison

cannot be said to be in accordance with law, the court must in accordance

with the requirements of Article 40.4.2˚ of the Constitution, direct his release

from custody.”

Conclusion

As we know it is extraordinarily difficult to keep up with developments in not

just judicial review but in all areas of practice. Statute, statutory instrument and

case-law change, contort, advance and reverse positions which we had taken for

granted. The one thing one can say of certainty is that quite often it is not as

certain as we might have thought.

What is certain however is that it is a most worthwhile effort to attempt to keep

abreast of developments, both domestic and international. Clients can only hope

to benefit from such endeavour and the demands of the profession require us to

do no less.

Judicial review and the checks and balances it provides remains essential to the

running of our State. In this regard, no doubt everyone would agree with the

words recently stated by the President of the United Kingdom Supreme Court on

a recent appearance before the House of Lords constitution select committee: -

“If you don’t have a healthy and accessible judicial review function for

the courts then you don’t have a satisfactory modern democratic

society”

Niall Nolan, Barrister

July 2014

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