Supreme Court dismisses appeal on detention grounds but remits ECHR time issue for full hearing.

THE SUPREME COURT

[S.C. No: 212 of 2006]

Denham J.

McCracken J.

Macken J.

In the matter of Article 40.4.2 of the Constitution

Between

Frank Ward

Applicant/Appellant

and

The Governor of Portlaoise Prison

Respondent

Judgement delivered the 30th June 2006 by Denham J.

1. Frank Ward, the applicant/appellant, and hereinafter referred to as the applicant, brings this appeal against the decision of the

High Court given on the 8th May, 2006 on his application for an inquiry into his detention pursuant to Article 40.4.2 of the

Constitution.

2. The applicant is awaiting trial in the Dublin Circuit (Criminal) Court on charges of robbery, causing serious harm to a named person,

and firearms possession.

3. On 4th May, 2006 the High Court (Lavan J.) made an order pursuant to Article 40.4.2 of the Constitution that the respondent do

produce before the High Court at 10.30 a.m. on 8th May, 2006 the body of the applicant and do certify in writing the grounds of his

detention.

4. The applicant appeared before the High Court on 8th May, 2006. On behalf of the respondent it was certified that the grounds for

the detention of the applicant was an order of the Circuit Court (Delahunt J.) dated 24th April, 2006.

5. There is a note of the judgment of the High Court which was delivered on the 8th May, 2006. I shall return to this determination at

a later stage.

6. The applicant filed a notice of appeal setting out the following grounds:

(i) That the High Court erred in all legal respects in not granting him the relief sought.

(ii) That the High Court erred in law and fact in not conducting a proper constitutional enquiry in accordance with Article 40.4.2

of the Constitution of Ireland 1937.

(iii) That no warrant authorising his detention, nor other written certification of his detention, was proven in open court by the

respondent John Dooley the Governor of Portlaoise Prison, nor by anyone from this prison in person in open court in his

presence.

(iv) That the respondent John Dooley the Governor of Portlaoise Prison, did not appeal in court on the 8th May, 2006 to

personally justify his continued detention, contrary to the finding of fact by the High Court.

7. On this appeal the applicant appeared in person as a lay litigant. The respondent was represented by counsel.

8. At the hearing of this appeal the applicant presented his case on seven grounds. I shall follow the same sequence, and refer back

also to the four grounds of appeal filed in the notice of appeal, which broadly cover the same grounds.

The seven grounds advanced were:

(i) The Governor did not appear personally in the High Court, and that this was a breach of the order of Lavan J., in that the

Governor had not certified the grounds on which he detained the applicant, and that if the Governor was not signing the

certificate then whomever did so would need a power of attorney.

(ii) That the applicant was not afforded a fair hearing as he was not given time to argue his third ground, which was, inter alia,

that there was a breach of the European Convention on Human Rights Act, 2003 as he had not been tried within a reasonable

time of his original charging. The applicant also submitted that the trial judge had cross examined him on his application but that

at no time did counsel for the State challenge his grounds of complaint.

(iii) That the enquiry was not conducted in accordance with Article 40.4.2 but in an ad hoc fashion and that the conditions

required of such an enquiry were not met. Specifically the applicant submitted that the conditions were not met in that the

certificate and warrant were not proved in open court and that he was not given or shown the certificate or warrant. He

stated, again, that the Certificate should have been signed by the Governor himself. The applicant referred to Order 4 of the

Rules of the Circuit Court, 2001 and submitted that on the face of the warrant it was in breach of this order, that there was no

embossing seal. He also queried the signature and submitted that the warrant should have been signed by the judge.

(iv) The applicant submitted that there should be strict conformity with the requirements of Article 40.4.2 of the Constitution.

Thus, the Certificate should have been signed by the Governor himself as he is required to justify his detention.

(v) That the learned trial judge has erred in law in holding that the committal warrant was spent on 12th October, 2004.

(vi) That the learned trial judge erred in determining that there was an ambiguity on the face of the return for trial, that it was

infact non-compliance with the law. That he had been held on a defective warrant prior to being brought to Cloverhill District

Court and that therefore the court order was unlawful.

(vii) The applicant submitted that he had not been given a trial within a reasonable time as he has been in custody continuously

since 6th October, 2003. He submitted that this was a breach of Article 6 of the European Convention on Human Rights. Further

that it was also a breach of Article 13 of the European Convention on Human Rights, as he has been denied an effective remedy

to date by the courts. The applicant referred to Ward v. The Governor of Portlaoise Prison, Record No: 2004 No. 1252 SS and

said he had not received a decision on the matter. The applicant also submitted that he had not been granted bail and that this

was a breach of the European Convention also.

9. According to the note of the judgment, the High Court addressed two grounds. First it considered the committal warrant dated 5th

October, 2004. This is the fifth ground advanced by the applicant before this Court. On this matter the High Court held:

"Firstly he argues that a committal warrant dated 5th October, 2004, which purported to remand him in custody pending a court

hearing on 12th October, was not signed by a District Court judge as required by s. 8(6) of the Civil Procedure Act 1967.

I am satisfied on the evidence that it is quite unnecessary to consider this argument because the committal warrant dated 5th

October, 2004, had been spent by the 12th October, 2004. Thereafter the applicant was lawfully remanded on successive

occasions by successive orders of the District Court. He was ultimately remanded in custody pursuant to the order of the

Circuit Court to which I have referred earlier. If there was any defect on the face of the committal warrant dated 5th October,

2004 or otherwise, and I do not make any finding in that respect, then it was quite clearly corrected by lawful, valid court

orders made on successive occasions between 12th October, 2004 and the date of these proceedings.

Accordingly the applicant’s contention in respect of the committal warrant is rejected."

I am satisfied that this determination was made within jurisdiction and that there was no error by the High Court. I would affirm this

decision and I would dismiss the fifth ground raised by the applicant.

The second ground determined by the High Court related to the return for trial. This is in essence the sixth ground submitted by the

applicant before this Court. On this matter the High Court held:

"The second ground relied upon by the applicant in respect of this application relates to the order of the District Court dated

12th October, 2004, which provided that the applicant should be sent forward for trial to the Circuit Criminal Court.

The applicant contends that that order is defective on its face because it recites that the Director of Public Prosecutions has

directed that the applicant should not be sent forward to the Special Criminal Court in respect of the charges which are

numbered 2, 4 and 5 in a Statement of Charges. He says that having regard to the sequence in which the charges appear on

the Bill of Indictment it is unclear to which charges the direction applies.

I am satisfied that this potential ambiguity does not render the applicant's detention unlawful. I have pointed out to the

applicant that it is open to him to make an application for leave to seek relief by way of judicial review quashing the Return for

Trial if he can demonstrate that by its terms or otherwise he may be exposed to a risk of illegality, impropriety or injustice in the

conduct of the trial of the offences with which he has been charged.

Ambiguity on the face of the Return for Trial does not, by itself, render the applicant's detention on foot of a valid Circuit Court

order unlawful. In this respect it is of relevance that the trial court is empowered pursuant to the provisions of s. 6(1) of the

Criminal Justice (Amendment) Act, 1924, to amend a Bill of Indictment in order to clarify its terms or cure defects which are

apparent on the face of that Bill. No application was made to the Circuit Court in that respect. The applicant has, at material

times, enjoyed the benefit of professional legal advice and representation in relation to his trial and in relation to other civil

proceedings arising out of his detention.

In the circumstances I am quite satisfied that the authority produced before this court for the detention of the applicant is

valid. It comprises the order of the Circuit Court (Delahunt J.) dated 24th April, 2006. That order is valid on its face and

otherwise."

I am satisfied that this was a correct approach by the High Court. The applicant was denied the only relief available on an application

for habeas corpus, that is release from his detention. The basis for this refusal was that his detention was certified to be on foot of a

Circuit Court Order dated 24th April, 2006. In the circumstances the return for trial dated 12th October, 2004 was not relevant.

However, the High Court did point out to the applicant that it was open to him to make an application for judicial review.

Consequently, I would affirm the judgment of the High Court on this matter, and dismiss the sixth ground advanced by the applicant.

10. Other grounds

Thus there are five grounds remaining on the applicant's appeal. They relate broadly to two matters: (i) the return on behalf of the

Governor, and, (ii) the issue of the time since the applicant was placed in custody.

10.1 The Certificate

It appears that the applicant was not given a copy of the certificate, schedule or warrant filed on behalf of the Governor at or before

the High Court hearing. Such a situation would be a breach of fair procedures. These matters were raised in the notice of appeal,

grounds number 3 and grounds number 4, and in the submissions before the Court. The applicant has made the following submission:

(a) The Governor should have been in court; (b) the certificate should have been signed by the Governor; (c) if the Governor did not

sign the certificate then there should have been a power of attorney for whomever did; (d) the warrant was in breach of the rules;

(e) there was no embossing seal on the warrant; (f) the warrant was not signed by the judge; (g) the warrant does not show

jurisdiction on its face.

The applicant submitted that because he had not received a copy of the certifying documents either before or at the hearing in the

High Court he did not raise these there but that he would wish to raise them.

10.2 Reasonable time

The applicant submitted that he raised the issue of the European Convention in ground number three of his application for habeas

corpus but that he did not get an opportunity to advance the matter at the hearing and that even though the issues were raised in

his grounding papers they were not addressed in the judgment.

It is clear that the High Court was seeking to assist the applicant on his application by asking him to set out his grounds orally.

However, a consequence of this was that this ground of his application was not adequately opened in oral submissions and therefore

also not in the judgment.

The issues raised by the applicant should be distinguished from the matters the subject of the determination of the High Court (Dunne

J.) in Ward v. D.P.P. & Judge Connellan (Unreported, High Court, Dunne J. 15th June, 2005) where a nolle prosequi was a relevant

factor. However, it is clear that the applicant wished to raise the issue of the time which has elapsed since he was placed in custody

on 6th October, 2003, and that his trial will not take place before 12th October, 2006. The applicant submitted that this was a

breach of the European Convention on Human Rights.

This issue was not heard by the High Court and there is no decision on it. This is a court of appeal and, except in the most

exceptional circumstances, it does not determine issues which have not been the subject of a decision of a court of trial. This Court

has not heard the relevant facts. These may include evidence of collateral litigation brought by the applicant. The applicant informed

the court that he had an appeal pending to this Court.

The applicant also made the submission that the courts had not afforded him an effective remedy, or granted him bail, and that this

was a violation of the European Convention on Human Rights.

11. Remit

In all the circumstances of the case I would remit to the President of the High Court the issues set out in paragraph 10 above. As

these are discrete issues there is no necessity to have the matter listed before the High Court judge who heard the application

originally.

12. Conclusion

For the reasons given I would dismiss the appeal on the grounds set out in paragraph nine above, and remit to the President of the

High Court the issues set out in paragraph ten above for a full hearing. In so remitting, the High Court is at large to exercise its

discretion, if it thought fit, to transfer these, or part of these, proceedings into judicial review proceedings. I make no determination

on this issue, I merely wish to make it clear that the High Court has its full discretion to exercise on the matters.