Supreme Court dismisses appeal regarding detention inquiry, upholding High Court refusal on procedural grounds.

[2001] IESC 23

THE SUPREME COURT

233/99

Murray J.

Hardiman J.

Geoghegan J.

IN THE MATTER OF ARTICLE 40.4.2. OF THE CONSTITUTION OF IRELAND 1937

AND IN THE MATTER OF CERTAIN PURPORTED HIGH COURT EX PARTE PROCEEDINGS RELATING TO RECORD NO. 2010 SS OF

1998

BETWEEN/

STIOFÁN BREATHNACH

Applicant/Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS, ATTORNEY GENERAL AND MANAGER OF WHEATFIELD PLACE OF DETENTION

Respondents

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

1. Notwithstanding the unorthodox and indeed impermissible title given to the proceedings by the applicant/appellant, this is quite

simply an appeal from a refusal by the High Court (Carney J.) to order an inquiry under Article 40.4.2 of the Constitution into the

lawfulness or otherwise of the detention of the appellant. The ruling of Carney J. reads as follows:

“The applicant is not entitled to name as intended respondents persons who by virtue of their office are not amenable to judicial

review. The applicant is not a political prisoner and is not entitled to describe himself as such. The legality of the applicant’s

detention has been affirmed on innumerable occasions by the Superior Courts and also recently by the Court of Criminal Appeal.

I find nothing in the instant application which would justify any further inquiry into the same. This application is refused.”

2. There is no doubt that, on procedural grounds alone, Carney J. was entitled to refuse to entertain this application. With the

possible exception of the last three respondents it was wholly wrong, improper and an abuse of the process of the courts to have

named the other respondents in an Article 40 Application. These other respondents ought to be struck out from the title.

Furthermore, the grounding affidavit contained a large number of matters which were irrelevant to the simple issue of whether the

appellant was entitled to an order for his release or not. It has long been held by this Court that an Article 40 Application should be

confined to that issue.

3. In my view it would have been open to this Court to have dismissed this appeal on similar grounds to the grounds on which the

inquiry was refused by Carney J. But as the grounding papers had been drafted by the appellant himself without legal assistance and

as it was made clear by counsel for the appellant that the appeal was essentially being confined to certain specified points, the Court

entertained the appeal in the sense of considering the application on its merits.

FIRST POINT:

4. The appellant is currently serving a number of prison sentences, the longest being for fifteen years arising out of a conviction in

the Special Criminal Court in November, 1993. It is argued on behalf of the appellant that the Special Criminal Court, which tried him,

derived its jurisdiction to do so from a certificate of the Director of Public Prosecutions under section 47 of the Offences against the

State Act, 1939, and that no proper proof of that certificate was ever adduced at the trial. He relies principally on The People (D.P.P.)

v. Eccles, a decision of the Court of Criminal Appeal reported in 3 Frewen 36. To understand the issues involved it is important to cite

section 47 in full. It reads as follows:

“(1) Whenever it is intended to charge a person with a scheduled offence, the Attorney General may, if he so thinks proper,

direct that such person shall, in lieu of being charged with such offence before a justice of the District Court, be brought before

a Special Criminal Court and there charged with such offence and upon such direction being so given, such persons shall be

brought before a Special Criminal Court and shall be charged before that court with such offence and shall be tried by such

court on such charge.

(2) Whenever it is intended to charge a person with an offence which is not a scheduled offence and the Attorney General

certifies that the ordinary courts are in his opinion, inadequate to secure the effective administration of justice and the

preservation of public peace and order in relation to the trial of such person on such charge, the foregoing subsection of this

section shall apply and have effect as if the offence with which such person is so intended to be charged were a scheduled

offence.

(3) Whenever a person is required by this section to be brought before a Special Criminal Court and charged before that court

with such offence, it shall be lawful for such Special Criminal Court to issue a warrant for the arrest of such person and the

bringing of him before such court and, upon the issue of such warrant, it shall be lawful for such a person to be arrested

thereunder and brought in custody before such court.”

5. It is necessary now to refer to the Prosecution of Offences Act, 1974. That Act established the office of the Director of Public

Prosecutions and pursuant to its provisions the Director now has the power of certifying conferred on the Attorney General by section

47 of the Offences against the State Act, 1939. Section 8(2) of the 1974 Act reads as follows:

“Every document purporting to be issued by the Director or the acting Director and to be signed by him shall be received in

evidence and be deemed to be such document without further proof, unless the contrary is shown.”

6. The appellant in conducting his own case before the Special Criminal Court very strongly argued that he was entitled to have the

charges dismissed because neither the Director nor any agent of his had gone into the witness box with a view to formally producing,

and putting in evidence the Certificate under section 47(2) of the 1939 Act. It was argued, both before the Special Criminal Court and

this Court, that the words ‘unless the contrary is shown’ in Section 8(2) of the 1974 Act are meaningless unless the D.P.P. or some

witness on his behalf can be cross-examined by or on behalf of an accused. In the course of considerable argument on this matter

during the 10th, 11th and 12th days of the trial it emerged, and was not seriously disputed, that the Certificate of the Director of

Public Prosecutions had been handed into the court on the 27th of July, 1993 on the occasion when the warrant was applied for, and

the court clearly acted on it the following day, when the accused was brought in and charged before the court. It seems clear

beyond doubt, therefore, that the Special Criminal Court did in fact have jurisdiction to try the case in the absence of a successful

attack on the certificate by the appellant. The only issue which arises is whether the certificate has to be formally proved or

produced in some way at the trial, and if so in what manner. In relation to the first of those questions the appellant relies on The

People (D.P.P). v. Eccles cited above. It is suggested that that case is authority for the view that the certificate must be proved at

the trial. I cannot agree. I think that this view arises out of a misunderstanding of the point being made by Hederman J. in the leading

judgment. At p. 56 of the report he is quoted as saying the following:

“It is clear that unless the Director of Public Prosecutions has issued a certificate in accordance with section 47, subsection (2)

of the 1939 Act, the Special Criminal Court has no jurisdiction to try any person on a non-scheduled offence. Section 4,

subsection (3)(a) of the 1974 Act provides for a method of proof of the fact that this certifying function has been performed on

the Director’s behalf by one of his professional officers. The submission advanced to the court of trial and again in this court,

that this proof must be tendered at the stage when the accused persons are brought before the court for the first time, is in

the opinion of this court erroneous. While the issuing of the appropriate certificate by the Director, or a professional officer on

his behalf, is undoubtedly a necessary precondition to the exercise by the Special Criminal Court of its jurisdiction to try any

persons on a schedule or non-scheduled offence, the fact that the Certificate has been given may be proved in the manner

described by section 4 of the 1974 Act at any time before the close of the prosecution’s case. In this respect it is no different

from any other proof which may be necessary to establish that a particular court has jurisdiction to try a particular offence.”

7. It seems clear that the objection taken in that case was that the Certificate, signed on behalf of the D.P.P., was handed in at too

late a stage and that submission failed. The case is not an authority for the proposition that if the Certificate had been handed into

the Court at a pre-trial stage, as happened in this case, the conviction is quashable if it has not been in some way proved or re-

handed in during the trial itself. As is clear from the provisions of the Prosecution of Offences Act, 1974, already cited, this Certificate

is of the well known category of documents which proves itself, and unlike, for instance, a Birth Certificate it is not required that an

appropriate person gives sworn evidence identifying it and producing it. The question of cross-examination does not therefore arise. If

an accused believes that he can successfully challenge a certificate of the D.P.P. under section 47 then he must either call for

production of the Certificate and demonstrate that on its face it is defective or alternatively call his own evidence with that end in

view. He cannot demand that the D.P.P. or one of his officers or anybody else on his behalf be available to be cross-examined. But he

can serve his own subpoena provided it is not an abuse of court. In that sense the situation is somewhat akin to a return for trial. It

has been established in a number of cases that there is no requirement on the part of the prosecution in a trial on indictment before

the ordinary courts to formally prove the return for trial. But if an accused requires it to be produced, it must be produced.

8. The Special Criminal Court which tried the appellant derived its jurisdiction from the Certificate which was handed into the Court at

the earlier stage.

9. Having carefully read the relevant parts of the transcript I am absolutely satisfied that at all material times the appellant’s

objection was that there was not a witness on behalf of the D.P.P. called to the witness-box with a view to formally proving the

Certificate. That was the only point at issue. I have already explained why that argument is legally unsound.

SECOND POINT:

10. The appellant alleges that the transcript of the trial is not properly certified. That is not a point which is now relevant to an

Article 40 application and I do not propose to deal with it.

THIRD POINT:

11. The appellant made what I think is a novel argument to the effect that the three members of the Special Criminal Court, when

they have completed a trial, must adjourn together to some particular place to consider their verdict analogous to what a jury does if

the case was being heard before the ordinary courts. The argument is largely based on the provisions of subsection (4) of section 41

of the Offences against the State Act, 1939. That subsection reads as follows:

“Subject to the provisions of this Act, the practice and procedure applicable to the trial of a person on indictment in the Central

Criminal Court shall, so far as is practicable, apply to the trial of a person by a Special Criminal Court, and the rules of evidence

applicable upon such trial in the Central Criminal Court shall apply to every trial by a Special Criminal Court.”

12. If there is no jury then quite obviously, procedures relating to a jury do not apply. In relation to the verdict the appropriate

procedure is set out in section 40 of the same Act which provides that the determination of every question before the Special Criminal

Court shall be according to the opinion of the majority of the members of that court present and taking part in the determination.

Each of the three judges therefore may arrive at his or her own view and the majority view prevails. There is nothing to prevent the

judges discussing the case in a different venue or among each other by telephone or any other form of communication. There is no

analogy to a jury. This ground of complaint must fail.

FOURTH POINT:

13. It is suggested that the Special Criminal Court, in pronouncing sentence, must itself specify the place where the sentence is to be

carried out, whether it be civil or military custody. It was stated that no prison was mentioned by the President of the Court when

imposing the sentence and that the registrar inserted the name of the prison, i.e. Portlaoise into the order and warrant. Quite apart

from the express power of the Minister for Justice to make regulations in relation to the carrying out of sentences pronounced by the

Special Criminal Courts under section 50 (3) of the Offences against the State Act, 1939, it has always been the law that in relation

to all sentences, whether they be of the ordinary courts or of the Special Criminal Court, it is for the executive to determine the place

of imprisonment. The court’s function, if it sees fit, is to impose a sentence of imprisonment but it has no function in specifying what

prison should be involved. That information comes from the executive and hence there is nothing inappropriate in the registrar filling in

the detail of the actual prison. That is the practice in all courts. This argument must also fail.

FIFTH POINT:

14. The applicant complained about alleged defects in the procedure for obtaining the necessary certificate under section 29 of the

Courts of Justice Act, 1924 to enable an appeal to be brought from the Court of Criminal Appeal to the Supreme Court. None of these

arguments can be relevant to an Article 40 inquiry and I do not intend to comment on them.

15. For the reasons indicated I would dismiss the appeal.