High Court dismisses Article 40.4.2 application as committal order is valid on its face with no fundamental denial of justice.

[2019] IEHC 71

THE HIGH COURT

2019 No. 139 SS

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSITUTION OF IRELAND

BETWEEN:

BEN GILROY AND JERRY BEADES

Applicants

– AND –

THE GOVERNOR OF MOUNTJOY PRISON

Respondent

JUDGMENT of Mr Justice Max Barrett delivered on 12th February, 2019.

1. The task of the High Court in Art.40 applications was described as follows by the Denham CJ in Ryan v. Governor of Midlands Prison

[2014] IESC 54:

“13. The Court follows and applies the statement of law given in FX v Clinical Director of the Central Mental Hospital

[2014] IESC 1, where it was stated at paragraphs 65 and 66:- ‘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….[W]here an order of the court does not show…invalidity on its face, the route 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.’”

2. The Supreme Court’s decision in Ryan is obviously binding on this Court. So the first question to be addressed is whether there is

any invalidity on the face of the Order of Committal of 16.01.2019 (the ‘Order’) (certified by the Deputy Governor of Mountjoy Prison

on 04.02.2019 as being the order pursuant to which Mr Gilroy has been detained). The Order is addressed to the Commissioner and

members of An Garda Síochána. It details Mr Gilroy’s criminal contempt, the operative part then providing that “You are hereby

commanded to arrest…Ben Gilroy and…lodge him in Mountjoy Prison there to be detained for a period of 3 months …”. Three

concerns were raised concerning the face of the Order:

(1) it does not mention that Mr Gilroy is to be detained by the Governor of Mountjoy Prison. In Carroll v. Governor of

Mountjoy Prison [2005] 3 IR 292, 297, Peart J. observes that “[T]he fact that the warrant to arrest is directed to the

superintendent, An Garda Síochána and commands the arrest of the applicant and his lodgement in Mountjoy Prison is a

sufficient authority to the governor of that place to receive him for the purpose of undergoing the sentence of the

court.” That finding, binding on this Court, has the result that the fact that the Order does not mention that Mr Gilroy is

to be detained by the Governor of Mountjoy Prison does not fall at law to be treated as a flaw.

(2) it has been wrongly endorsed by the member of An Garda Síochána who brought Mr Gilroy to Mountjoy Prison. The

following handwritten and signed endorsement appears on the Order: “Executed warrant by lodging Ben Gilroy in Mountjoy

Prison on 17th January 2019”. No issue was raised as to the struck-out year. What was raised in issue was the mention

of “17th January”. This has been explained on affidavit by the relevant Garda as a human error; it should have read ‘16th

January’; and that Mr Gilroy was lodged on 16.01.2019 is borne out by a Mountjoy Prison computer record exhibited in

evidence before the court. So the mistaken reference to “17th January” has been explained away.

(3) it names the wrong plaintiff. Even if the wrong plaintiff is named in the title to the proceedings (“Allied Irish Banks plc”

versus “Allied Irish Banks, plc” which it was submitted are two different institutions), it was not disputed that the record

number is correct, nor is it disputed that in proceedings bearing that record number the committing judge found Mr Gilroy

guilty of criminal contempt. So if there is a flaw in the name of the financial institution that is party to the proceedings it

is not a fatal flaw.

3. A number of further points were raised, in effect claiming a fundamental denial of justice to Mr Gilroy. These points focused in part

on the committing Judge’s conduct of the substantive proceedings, a matter more properly for appeal. Two further points arose:

(1) Mr Gilroy claims that when he was brought from the court to the Garda station on 16.01.2019, he asked whether he

was under arrest and was told that he was not under arrest but neither was he free to leave. Counsel for the Governor

indicated that what happened to Mr Gilroy in this regard is no different from what happens to however many people are

sentenced to imprisonment each week: sentence is pronounced, the prisoner is led away, and the relevant documentation

issues thereafter. Why is this process legally unobjectionable? It seems to the court that it is because a judge’s order

takes effect once uttered in court; the documentation that follows is but the formalisation of such order; as a result, the

prisoner is at all times detained pursuant to a lawful court order.

(2) it was suggested that a different committal process used to operate before a now retired judge of the Court of Appeal

(when a High Court judge). That judge, it is claimed, would allow time between the order for, and the effecting of,

committal. Sometime in 2017, it is claimed, this process changed and the type of process to which Mr Gilroy was exposed

came into play. Whatever the previous practice of another High Court judge (even a number of High Court judges) may

have been, it does not follow that a difference in approach on the part of the committing judge here (a) represents a

change in the law or (b) is inconsistent with law. Two judges can approach matters differently; one may take a rigorous

approach to achieve a particular end, another may consider that a more nuanced approach suffices to reach the same

end (and it may); yet both can still be acting in conformity with law; that is the nature of individual judgment.

4. For the above reasons, the court is coerced as a matter of law to conclude that Mr Gilroy’s detention at Mountjoy Prison pursuant

to the Order is in accordance with law.