High Court dismisses applicant's renewed application for inquiry into unlawful detention due to lack of sufficient basis.

Neutral Citation Number: [2008] IEHC 67

THE HIGH COURT

[2008 No. 423 S.S.]

BETWEEN

JOHN J. RINEY

APPLICANT

AND

THE GOVERNOR OF THE LOUGHAN HOUSE PRISON

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Judgment of Mr. Justice John Edwards delivered on 22nd of March, 2008.

Introduction

1. The applicant in this case is detained in Loughan House Prison. On the 19th of March 2008 he executed a six page handwritten

document purporting to be an affidavit grounding a complaint that he was being unlawfully detained. The purported affidavit (which

was not sworn) was transmitted to the High Court and it was placed before me. In accordance with my duty under Article 40.4.20 of

the Constitution I inquired into the matter by examining carefully the said purported affidavit, together with all supplementary material

forwarded with it, namely a copy warrant of execution, and a purported Notice of Appeal from the District Court to the Circuit Court.

Having examined all of this material I formed the view that it failed to disclose any basis that would justify me in taking the next step

provided for under Article 40.4.20 , namely that the Court “may (my emphasis) order the person in whose custody such person is

detained to produce the body of such person” …….and give “the person in whose custody he is detained an opportunity of justifying

the detention”.

2. For the avoidance of all doubt, in stating in yesterday’s judgment that “I am not satisfied that I have sufficient basis for opening

an inquiry under article 40.4.”, I was referring to the convening of a formal Court hearing for the purpose of taking the second and

subsequent steps provided for in Article 40.4.20.

Renewal of application

3. On today’s date, Easter Saturday the 22nd of March, 2008, the applicant has sought to renew his application for an inquiry under

Article 40.4 of the Constitution. On this occasion the following further material has been put before me.

4. Firstly the applicant himself has executed a supplemental purported affidavit (again unsworn). This document is handwritten and is

four pages long. Secondly, he has also furnished copies of The State (Collins) v. Kelliher [1983] I.R. 388; The State (Rodgers) v.

Galvin [1983] I.R. 249 and a two page extract from an unidentified judgment of Walsh J. Thirdly he has sent in a picture of “the Beach

at Downings” annotated or labelled as “Aerial Photograph of Illegal Encroachments on to Trá Beg (aka “the Beach at Downings)

Rosguill Peninsula, Co Donegal, inspected personally by Bertie Ahern 12 + 14 August, 2003.” Fourthly, he has furnished a copy of S.I.

251 of 1968, namely the Livestock Marts Regulations, 1968. Sixthly, and finally, there is a purported affidavit from his wife Josephine

(also unsworn) executed on todays date.

The new material

5. The applicant’s further purported affidavit asserts in paragraph 1 thereof that my judgment of yesterdays date “raises fundamental

questions about the judiciary”. However, these are not clearly identified. In paragraph 2 there is a reference to the Anglo Irish Treaty

of 1922, and the decisions of Walsh J. in The State (Burke) v. Lennon [1940] I.R. 136 and in The State (Browne) v. Feran and Ors

[1967] I.R. 147, In paragraph 3 the judgment of Kennedy C.J. in O’Foghludha v. McClean [1934] I.R. 469, 475. is referred to. If I

understand correctly the point that the applicant is trying to make by referring to these authorities, he is suggesting that I have

misinterpreted the Constitution and that I must have regard to the Irish text rather than the English translation. His case, if I

understand him correctly, is that a High Court Judge is obliged by virtue of Article 40.4.20 to enquire into a complaint by a citizen that

he is being unlawfully detained. I completely agree with him. I have enquired into the matter yesterday by examining and considering

the material sent to me. I have already stated that in considering the matter yesterday I was not satisfied at that time that it was

appropriate to move to the second and subsequent stages of the constitutional procedure. If, following a review of the further

“evidence” put before me today I consider it necessary to do so, I will do so.

6. In paragraph 4 of his affidavit the applicant indulges in a dissertation on the origins of my surname “Edwards” and then proceeds to

refer to an Inquiry under section 105 of the Vocational Education Act, 1930 held at the Radisson Hotel in Letterkenny on the 16th of

May, 2005, in which he had an involvement. What the relevance of this is, is not explained. However, he goes on to make wholly

irrelevant remarks about a large number of named Solicitors, Barristers, District Court Judges, Circuit Court Judges, High Court Judges

and a Supreme Court Judge. None of this bears remotely on the legality of his present incarceration for non payment of fines imposed

upon him by the District Court.

7. The supposed relevance of the aerial photograph furnished, or of the Livestock Marts Regulations is nowhere explained.

8. I have also considered the applicant’s wife’s purported affidavit. She firstly reiterates the point that I understand her husband to

be making, namely that I am obliged under the Constitution to enquire into the legality of his detention. I have already dealt with

that.

9. The applicant’s wife referred in her affidavit to “warrants” plural. This was a cause of some concern to me as the material furnished

to me yesterday only included one copy warrant – good on its face. In the interests of fairness to the applicant I have caused my

Registrar to bespeak from Loughan House a copy of any warrant or warrants on foot of which the applicant is being held. It turns out

that he is being held on foot of three warrants in total, all for non payment of fines. One of those is the document referred to in my

judgment of yesterday’s date. However, there are two more. I have examined these and they are also good on their face.

10. The applicant’s wife complains that the warrants are not signed by District Judge Zaiden, he has merely initialled them “DZ”. This

is true. However, I am satisfied that the initials in question constitute a sufficient signature and that there is nothing in that point.

11. The point is now made that the applicant is detained at Loughan House, not Castlereagh Prison. However, the copy warrants

faxed to my Registrar from Loughan house show that the applicant was taken to Castlereagh Prison in the first instance. The prison

authorities are perfectly within their rights to transfer prisoners within the prison system once they have received a prisoner at the

prison to which the committal warrant commits him. Acccordingly, there is nothing in that point.

12. The applicant’s wife is wrong in her belief that the filing of an appeal against a District Court Conviction operates as an automatic

stay on the District Court Order. It does not. By virtue of Order 101 of the District Court Rules, 1948 an appeal will not operate as a

stay where recognisances are required. Order 101 Rule 6 states, inter alia, that “in any case where a monetary penalty has been

imposed on the appellant, the Court may, upon the expiration of the time allowed by the order for payment of the penalty, issue the

warrant of committal in default of payment, unless the appellant shall have entered into the recognisance.” No recognisance has been

entered into by the appellant. Moreover he did not appeal in time. Neither has he applied for an extension of time within which to

appeal. Furthermore, his purported Notice of Appeal is defective in any event as was pointed out yesterday. Finally, there is nothing

in any of the material furnished to me to suggest that the applicant has stateable grounds on which to base an appeal, even if he

were allowed to prosecute an appeal.

Decision

13. Having re-considered all of the materials put before me yesterday, and the supplemental materials put before me today, I remain

of the view that I do not have sufficient basis for convening a formal Court hearing for the purpose of taking the second and

subsequent steps provided for in Article 40.4.20.

14. I therefore dismiss the applicant’s renewed application.