High Court dismisses vague habeas corpus application on behalf of unknown detainees under search warrants.

THE HIGH COURT

[2025] IEHC 597

[H.S.S. 2025 1665]

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

PATRICK McGREAL

COMPLAINANT

(ON BEHALF OF ANY PERSON DETAINED ON THE BASIS OF EVIDENCE

OBTAINED UNDER SEARCH WARRANTS ISSUED BY PEACE

COMMISSIONERS PURSUANT TO SECTION 26 OF THE MISUSE OF DRUGS

ACT, 1977 (AS AMENDED))

AND

THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

THE DIRECTOR OF PUBLIC PROSECUTIONS

THE GARDA COMMISSIONER

THE IRISH PRISON SERVICE

RESPONDENTS

Judgment of Mr. Justice Cregan this 31st day of October, 2025

Introduction

1. The complainant in this case, Mr. McGreal, has brought an application under Article

40.4.2 of the Constitution – as the title to the proceedings sets out – on behalf of any person detained on the basis of evidence obtained under search warrants issued by peace commissioners pursuant to section 26 of the Misuse of Drugs Act, 1977 (as amended).

2. However, before considering the substance of the habeas corpus application, I wish to address an issue raised by Mr. McGreal at the outset of the hearing.

Requirement for a record number.

3. Mr. McGreal appeared in court with his written application, under Article 40.4.2 of the Constitution. The registrar indicated to me that Mr. McGreal had not gone to the Central Office to obtain a record number for these proceedings. A record number is of significant importance in every set of proceedings because every single case initiated by any person is assigned a record number which allows the Central Office, registrars, and indeed the court, to keep track of various orders made in respect of each case, dates for hearing, adjourned dates, etc.

4. When I inquired of Mr. McGreal whether he would go to the Central Office to obtain a record number, he refused to do so and indicated that he did not wish to do so. This is because of a previous dispute between Mr. McGreal and the Central Office.

5. However, it is also because of Mr. McGreal’s view that the Constitution was clear in its terms that the complaint could be made directly to the High Court or any judge thereof. In his view, there was no requirement on him to obtain a record number. It should be stated that Mr. McGreal could, if he wished, have gone to the Central Office to obtain a record number but he deliberately chose not to do so.

6. However, the question I have to address is whether the court should consider an application for habeas corpus even if it does not have a record number. The answer to that question is clearly yes.

7. It is clear from the history of habeas corpus, the constitutional provisions in Article

40.4.2 of the Constitution and the case law that there are no specific procedures to be followed in respect of a habeas corpus enquiry.

8. As Finlay P. stated in Cahill v. The Governor of the Military Detention Barracks [1980] ILRM 191 (at page 201), a habeas corpus application can “be made in the most informal way either by the applicant himself or by any other person without any special legal status bona fide interested on his behalf. It can be made, as no other application can be made to a chosen judge of the High Court and must, if practicable and possible, be discharged by him. Procedures concerning it are freed from many of the rules of procedure and restrictions applicable to other forms of application to the High Court, and the relief claimed and granted in appropriate cases, namely that of release from custody or detention, is immediate and in a sense dramatic”.

9. In Kane v. The Governor of Midland Prison [2012] IEHC 511, Charleton J. stated at paragraph 2: “The Constitution is a law in itself as well as being the fundamental law of Ireland. The entitlement to this procedure is not to be adjusted or abridged by any form of rule which undermines the swift and direct right of anyone within the State to challenge the legality of any apparent case of wrongful imprisonment or detention. Therefore, on such an application the High Court may adopt such procedures as are suitable to a proper enquiry into the issue of lawfulness of detention.”

10. It is clear from a review of the case law on habeas corpus applications that there is often a considerable degree of informality in the initiation of such enquiries.

11. In the circumstances therefore, I have requested the registrar to obtain a record number from the Central Office for the purpose of this habeas corpus application and I will move to a consideration of the merits of Mr. McGreal’s application. Application for Article 40.4.2 enquiry.

12. This is an unusual application for an Article 40.4.2 enquiry. Mr. McGreal, who describes himself as “a citizen of Ireland, greengrocer and Justice Facilitator”, is bringing this application under Article 40.4.2 of the Constitution “on behalf of any person detained pursuant to convictions arising from evidence obtained under search warrants issued by peace commissioners under s.26 of the Misuse of Drugs Act, 1977 As Amended (“the 1977 Act”).

13. Article 40.4.2 provides that

“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”

14. Mr. McGreal submits that he can make this complaint on behalf of other persons as Article 40.4.2 provides that a complaint can be made “by or on behalf of any person to the High Court”. I agree with this submission. Mr. McGreal is entitled to bring an application on behalf of any person alleging that such person is being unlawfully detained.

15. The difficulty which arises in this application is the broad category of persons on whose behalf Mr. McGreal is making such an application. The meaning of “on behalf of any person”.

16. The question which arises in this application is what is the meaning of “on behalf of any person” – and the related question as to whether an applicant, such as Mr. McGreal, can make an application under Article 40.4.2 for such a broad category of unknown persons.

17. Mr. McGreal, in his written submissions, refers to an article by Dr. Costello entitled “The Great Constitutional Remedy of the Right to Liberty: a survey of Article 40.4.2 [2024] Irish Judicial Studies Journal Vol. 8 (1).” He states, in his submissions, that Article 40.4.2 of the Constitution confers a right on third parties to initiate complaints on behalf of ‘detainees’ without the necessity of naming a specific individual at the outset and that the Costello article (at pages 83 to 85) notes “the right of third parties to initiate complaints on behalf of detainees” and emphasising that applications may be made “by or on behalf of a detainee.”

18. Mr. McGreal submits that the identification of a specific detained person is not a prerequisite for making the enquiry and, instead, that once the application is made, it is the duty of the High Court to enquire forthwith into the complaint and to commence an inquiry.

19. Mr. McGreal further submits that, in circumstances where the identities of such allegedly unlawfully detained persons are unknown to Mr. McGreal but could be ascertained through an enquiry (e.g. by initiating an Article 40.4.2 enquiry), the court has a duty and an obligation under the Constitution to open such an enquiry. Background to the application.

20. Mr. McGreal, in his written submission to the court, sets out the background and context of this application. He states that his application arises in the context of submissions made by Mason Hayes and Curran LLP in proceedings before the District Court entitled “Patrick McGreal v. Mason Hayes and Curran LLP.” These District Court proceedings appear to have been instituted by Mr. McGreal as criminal proceedings before the District Court. According to Mr. McGreal, these submissions on behalf of Mason Hayes and Curran seek to challenge the validity of a summons issued under section 10 of the Petty Sessions (Ireland) Act, 1851 (as extended by section 88 of the Courts of Justice Act, 1924).

21. Mr. McGreal stated in his submissions that the submissions of Mason Hayes and Curran prompted him to consider a number of issues.

22. Mr. McGreal states: “Upon reflecting on the case law emphasised therein – particularly the judicial nature of issuing summonses and the unconstitutionality of Peace Commissioners exercising substantive judicial powers in criminal matters, as affirmed in O’Mahoney v. Milia [1989] IR 335 – I extrapolated that the issue of search warrants under s.26 of the 1977 Act which requires evaluation of sworn evidence and a determination of reasonable grounds, constitutes a far more substantive exercise of judicial power in a criminal matter rendering it unconstitutional”. Mr. McGreal submits that his view on this matter is fortified by the Law Reform Commission’s report on search warrants, and bench warrants (pages 75 to 86) which he says underscores “the profound constitutional perils attendant upon entrusting such powers to non-judicial actors like peace commissioners particularly in the realm of serious criminal investigations such as those under the 1977 Act”. (emphasis added). The current complaint.

23. At paragraph 9 of his submissions, Mr. McGreal states as follows: “This complaint is made on behalf of any person presently detained in the custody of the Irish Prison Service arising from prosecutions or convictions based on evidence obtained under search warrants issued by peace commissioners pursuant to s.26 of the Misuse of Drugs Act, 1977 (as amended). Sections 26(1) –(3) of the 1977 Act as originally enacted and prior to partial amendment by s.8 of the Criminal Justice (Drug Trafficking Act) 1996 and s.3 of the Criminal Justice (Search Warrants) Act, 2012 empowered peace commissioners to issue warrants upon sworn information establishing reasonable grounds to suspect the presence of controlled drugs, prohibited plants or related documents on premises, thereby authorising invasive searches of dwellings in aid of indictable offences punishable by terms of imprisonment up to life”.

24. He submits that “the systemic nature of this practice - implicating over 300 disparate statutory provisions for search warrants renders innumerable detentions presumptively unlawful demanding the High Court’s vigilant intervention under Article 40.4.2”.

25. He submits at paragraph 10 of his submissions “Peace commissioners are not judges within the meaning of Articles 34 and 35 of the Constitution and are not members of any court established by law. They are appointed by the Minister for Justice under s.88 of the Courts of Justice Act, 1924 not by the President and they do not take the constitutional judicial oath. Accordingly they cannot lawfully exercise judicial power in criminal matters as confirmed by the Supreme Court in State (Clarke) v. Roche [1987] ILRM 309 and the High Court in O’Mahoney v. Melia [1999] IR 335”.

26. At paragraph 11 of his submissions he sets out the distinction between a summons and a search warrant.

27. In summary, Mr. McGreal’s submission appears to be that there is a distinction between a summons under section 10 of the Petty Sessions (Ireland) Act, 1851 (as amended) and the issuing of a search warrant under section 26 of the Misuse of Drugs Act, 1977 which requires the issuing authority to be “satisfied by information on oath” that reasonable grounds exist to suspect an offence.

28. Mr. McGreal argues, at paragraph 13, that “whilst the issuing of a summons may fall within the limited-function allowance of Article 37.1 as an administrative judicial act in noncriminal matters, the issuance of a search warrant by a peace commissioner in a criminal investigation is a substantive judicial act in a criminal matter and is unconstitutional exceeding the judicial scope of summons issuance under the 1851 Act.”

29. He argues therefore that any prosecution, conviction, or detention founded upon evidence obtained under such a warrant is not in accordance with law for the purposes of Article 40.4.2 of the Constitution and ought to be struck out.

The constitutional duty of inquiry

30. Mr. McGreal submits that the first part of the inquiry under Article 40.4.2 obliges the High Court to forthwith enquire into the complaint by taking proactive steps to ascertain the facts, without the need for the complainant to identify specific detainees in advance.

31. Mr. McGreal also submits that where the potential detainees are unidentified but may be revealed through systemic review, the mandatory initial inquiry under Article 40.4.2 must include at a minimum: “(a) Directing the Minister for Justice, Home Affairs and Migration to contact all peace commissioners presently appointed in the State to ascertain how many search warrants have been issued under s.26 of the Misuse of Drugs Act, 1977 (as amended)

(b) Directing the Garda Commissioner to identify and confirm the members of the Garda Siochana who applied for and executed such warrants and

(c) Directing the Director of Public Prosecutions to provide data on all prosecutions grounded on evidence obtained under such warrants indicating how many resulted in active custodial sentences”.

32. Mr. McGreal then submits that if, following this initial enquiry, the judge is satisfied that there is an arguable case of unlawful detention (i.e. if individuals are identified as being detained on foot of evidence from such warrants) then the second part of Article 40.4.2 grants the judge discretion to proceed to a full enquiry. Mr. McGreal submits that this may include “Directing the Irish Prison Service to produce before the courts the bodies of any person so detained and to certify in writing the grounds of their detention”. Assessment.

33. I am of the view that Mr. McGreal’s application must be refused for a number of reasons.

34. First, in my view, an application under Article 40.4.2 of the Constitution must identify with some degree of specificity the exact person or persons in respect of whom the application is being made. One can certainly envisage a situation where an application for habeas corpus could be made in respect of one or more persons or indeed of a group of persons. One could also envisage a situation in which the applicant might not have the full names or the exact names of the persons whom they believe are being unlawfully detained. However, there is, in my experience of such applications, usually a high degree of specificity about the persons in respect of whom an application is made under Article 40.4.2. The problem with Mr. McGreal’s application is that it is an application on behalf of an entire category of persons – all of whose identities are unknown and all of whose places of detention are unknown. Indeed, Mr. McGreal is unable to say with any precision how many persons might be caught within this application. Thus, the application is too vague and uncertain.

35. The second difficulty with Mr. McGreal’s application is that it is not at all clear what that category of persons is, or how it could be ascertained. Mr. McGreal’s application is based upon his legal analysis of problems of summonses under section 10 of the Petty Sessions (Ireland) Act, 1951. Mr. McGreal, however, is not a lawyer; he is a litigant in person who brings numerous cases before the court on his own behalf. Recently, however, he has also taken to calling himself “a Justice Facilitator” - whatever that means. It is unclear what the scope of his work in this regard is. However, I am not persuaded that his legal argument in this case is such as to warrant the opening of a habeas corpus enquiry. It is speculative and uncertain.

36. The third difficulty with Mr. McGreal’s application is that insofar as it relates to matters of criminal law, as it appears to do, it is reasonable to assume that the category of persons on whose behalf he is purporting to apply, have all been tried in a criminal court in respect of such offences. Insofar as they have, then they appear to be lawfully detained.

37. The fourth difficulty is that Mr. McGreal’s application seems more akin to a request for a commission of investigation than a focused habeas corpus enquiry.

Conclusion.

38. In the circumstances, I must refuse Mr. McGreal’s application to open an Article

40.4.2 enquiry because the category of persons named is too vague and uncertain. In my view, the constitutional remedy of Article 40.4.2 is not meant to be used for cases such as this.