Supreme Court dismisses appeal for striking out title and remands Article 40 inquiry to High Court.

Murray J.

Hardiman J.

Geoghegan J.

264/1999

THE SUPREME COURT

IN THE MATTER OF A RENEWED COMPLAINT PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND 1937

AND IN THE MATTER OF CERTAIN HIGH COURT PROCEEDINGS

BETWEEN/

STIOFÁN BREATHNACH

Applicant

and

GARDA COMMISSIONER AND MANAGER OF WHEATFIELD PLACE OF DETENTION

Respondents

Judgment of Mr. Justice Geoghegan delivered 22nd day of February 2001

1 All judges of the High Court and of the Supreme Court have judicial notice of the notorious fact that this appellant, while serving a

fifteen year prison sentence, has been constantly seeking judicial reviews and Article 40 inquiries with a view to obtaining his release.

Like every other citizen the appellant has access to the courts provided that it is not abused. There is nothing wrong in the number

of applications he may have brought, or may bring in the future if they are properly constituted and based on arguable points.

However, because of his experience in the courts he cannot be treated as an ordinary lay litigant unfamiliar with the procedures. I

find it difficult to believe that the appellant, in this case, did not know that he was quite wrong in purporting to join Mr. Justice Smith

of the High Court as a respondent to this appeal. In my view, that part of the title must be struck out. But the stage has long ago

been reached that in so far as unfounded and scandalous allegations are contained in papers lodged by this appellant in his various

proceedings the judges of the High Court, as indeed they have done in the past, may refuse to entertain the applications, even if

buried somewhere in the application is a possibly stateable point.

This notice of appeal contains unwarranted abuse of Mr. Justice Smith and of the High Court generally, which are not appropriate to

be included in the notice of appeal except in rare circumstances. In this case Mr. Justice Smith, as far as this Court is aware, followed

the normal procedure for prisoner applications. This appellant believes that that procedure is unconstitutional, but as he well knows

this Court has already held against him on that point in a written judgment delivered by McGuinness J. There has to be a balancing

between the constitutional right of access to the courts, the constitutional requirement that justice be administered in public, and

the constitutional requirement for due administration of justice, which may require the retention in custody of a convicted prisoner

duly sentenced. The procedure adopted for many years in the High Court and devised by a practice direction of a former President of

the High Court properly balances these different constitutional obligations in so far as they require reconciliation. If a prisoner

applicant obtains a conditional order for an inquiry under Article 40 or obtains leave to bring judicial review proceedings then the

inquiry itself or the application for judicial review brought pursuant to the leave will, of course, be heard in public and an

unrepresented applicant will be permitted to attend. At any rate the rulings of the High Court judges on the preliminary applications

are delivered in open court.

A large part of the notice of appeal in this case is devoted to these matters, but this Court is not prepared to re-open them. There

has already been judgment on them.

The appellant’s substantive ground for appeal however is that the learned High Court judge failed to pay particular attention to the

contents of his unsworn statement where he raises questions as to the lawfulness of his detention and the lawfulness of his being

removed from prisons to courts etc., having regard to the terms of the particular warrants under which he is being detained. The legal

grounds upon which the appellant makes his application are far from clear. There is a bald assertion that the warrant issued for his

imprisonment following on his sentence to fifteen years imprisonment by the Special Criminal Court was “unexecuted”. It is by no

means clear what the appellant means by “unexecuted” (particularly when he acknowledges that his imprisonment is due to the

sentence of fifteen years which he received). In any case his unsworn statement in support of this application does not disclose

anything which could form the basis for calling into question the effectiveness of the order of the Special Criminal Court dated 9th

November, 1993 referred to in his application. Otherwise the appellant appears to call into question the legality of his detention by the

second-named respondent generally but in particular the grounds that he was taken on at least one occasion, from the detention

centre at Wheatfield to the courts and back again. This he asserts was done without lawful authority and in particular he was

returned there without lawful authority. This he claims has rendered his current detention in Wheatfield unlawful. Even if this were

true it does not at all follow that he is entitled to be released. The learned High Court judge merely states in his ruling that he

understood that similar applications had been made by the applicant before. There is no doubt that there is ample statutory powers

to move convicted prisoners from one prison to another and to move them backwards and forward from courts. It is not entirely clear

what point the appellant is making but he is claiming that his detention in Wheatfield Prison is not lawful. Even if this were true it does

not at all follow that he is entitled to be released. This would not appear to be a case which would come within the type of grounds

for release suggested in The State (McDonagh) v. Frawley [1978] I.R. 131. Put bluntly, if the appellant is, for one reason or another,

being unlawfully detained in a particular prison, there is nothing to prevent his being removed to the correct prison, and thereafter he

would be in lawful detention. By the exercise of the appropriate powers he could then be re-transferred to Wheatfield. Given that

there is undoubtedly a lawful sentence of imprisonment for fifteen years it is difficult to see what the appellant has to gain by this

application. But I think that in the light of paragraph 1 of his unsworn statement whatever it may mean the High Court ought to have

granted him a conditional order strictly confined to an inquiry as to the lawfulness of his then detention in Wheatfield Prison.

I would, therefore, send the matter back to the High Court for an Article 40 inquiry to be conducted by that court. The return date

should be fixed by the High Court. Nothing in that order is to be interpreted as necessarily entitling the appellant either to discovery

or to call any particular oral evidence. As to whether such discovery or such evidence would be necessary for the purposes of the

inquiry will be a matter for the High Court judge. But I think it desirable that the State authorities make a proper return, which clearly

shows if they are able to show it, that the appellant is being lawfully detained. It may well be that no further inquiry by the High

Court will be necessary once the return is made. If the documents produced by the state authorities establish the lawfulness of the

detention as of the date of return, that is the end of the matter.