Supreme Court allows bail application under Art 40.4 despite s 16(4) silence, affirming High Court's inherent jurisdiction.

THE SUPREME COURT

468/06

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

IN THE MATTER OF ARTICLE 40.4

OF THE CONSTITUTION

BETWEEN

ALGIMANTAS BUTENAS

APPLICANT / APPELLANT

-v-

GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

NOTICE PARTY

JUDGMENT of the Court delivered on the 12th day of March 2008 by Murray C.J.

The appellant in these proceedings, having been arrested on foot of a European Arrest Warrant issued by the Prosecutor General of the Republic of

Lithuania, a competent judicial authority, was brought before the High Court for the purposes of the execution of that warrant. Mr. Justice Peart made an

order, on 24th November 2006 directing his surrender to the Republic of Lithuania pursuant to s. 16(1) of the European Arrrest Warrant Act 2003. In

accordance with the provisions of s. 16(4) of the Act of 2003 the learned High Court Judge made a consequential order on that date committing the

appellant to prison pending his surrender.

The appellant did not appeal against the High Court orders made pursuant to s. 16(1) and s. 16(4) of the Act.

The European Arrest Warrant Act 2003, as amended by the Criminal Justice (Terrorist Offences) Act 2005, is the means by which the State has given

effect to the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States.

Accordingly the Act falls to be interpreted in the light of the provisions of the Framework Decision.

Subsequent to the making of the High Court orders as aforesaid the appellant applied to the High Court for an order pursuant to Article 40.4.2 of the

Constitution directing his release from custody of the respondent on the grounds that he was unlawfully detained in Cloverhill Prison.

In response the respondent justified the appellant’s detention by producing to the High Court a committal warrant for the detention of the appellant issued

by order of the High Court pursuant to s. 16(4) of the European Arrest Warrant Act 2003 and which required the appellant to be detained in prison until the

date of his delivery by the State authorities to such person as was duly authorised on behalf of the Republic of Lithuania to receive his surrender to them for

the purpose of being returned to Lithuania to stand trial for certain criminal offences.

The said order and warrant were issued by the High Court following a determination by that Court pursuant to s. 16 that the appellant should be surrendered

to the authorities in Lithuania for the purpose of standing trial in relation to certain offences specified in a European Arrest Warrant dated December 2004

issued by a judicial authority in that country.

The High Court, having concluded that the respondent had, in law, valid grounds for the detention of the appellant, dismissed the appellant’s application

pursuant to Article 40. In doing so the High Court rejected the appellant’s submission that s. 16(4) of the Act of 2003 was unconstitutional.

The Minister for Justice, Equality and Law Reform was made a notice party to these proceedings and he was the applicant in the proceedings in which an

order was sought and obtained for the surrender of the appellant to the Lithuanian authorities pursuant to s. 16 of the Act of 2003.

It is also relevant to note that the Minister as specified in s. 6(1) of the Act of 2003 is the Central Authority in the State for the purposes of the Act. It is to

the Central Authority in the State, that a European Arrest Warrant must be transmitted by the issuing judicial authority (s. 12 of the Act).

In general terms it may be said that the Minister, being designated as the Central Authority in the State for the purposes of the Act, has administrative and

executive responsibility for initiating the steps to be taken for the arrest of a person named in a European Arrest Warrant for the purpose of bringing that

person before the Courts in order that the warrant may be executed by the High Court. He also has executive and administrative responsibility for giving

effect to an order for surrender, that is to say the handing over of the person concerned to the authorities of the requesting State when a judicial order has

been made for that purpose.

Because the proceedings brought by the appellant involved a challenge to the constitutionality of the provision of the statute a notice to that effect was

served on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts.

The Grounds upon which an Order pursuant to Article 40.4.2 is sought:

First of all it should be noted that the appellant does not seek to impugn, and has at no stage sought to impugn, the lawfulness of the determination and

Order made by the High Court pursuant to s.16(1) of the European Arrest Act 2003, as amended, directing that he be surrendered to Lithuania. Neither was

any appeal taken to this Court from that decision nor was any appeal taken from the order made pursuant to s. 16(4) which directed his imprisonment.

The appellant’s claim in these proceedings turns on the consequential Order made by the High Court in the European Arrest Warrant proceedings which

ordered his detention in Cloverhill Prison pending his surrender to the Lithuanian authorities. He says that the detention order is unlawful having been made

in the exercise of a statutory power which is unconstitutional.

That order was made pursuant to s. 16(4), the terms of which are set out below but which provides that the High Court, when making an order for surrender

pursuant to s. 16, shall also make an order committing the person to prison pending his or her surrender to the authorities of the requesting State.

The appellant’s claim is that the terms of that provision were such that it precluded the release on bail pending surrender, in every case and in all

circumstances, the person in respect of whom an Order of surrender was made.

Accordingly, s.16(4) is unconstitutional, it is claimed, because the obligation which it places on the High Court to order the detention of a person pending

surrender is a denial of a right to liberty as guaranteed by the Constitution in failing to permit the Court, in the exercise of an inherent discretion, to release

a person on bail and subject to such conditions as may be thought fit pending his or her actual surrender to the authorities of the State requesting the

surrender. As a consequence, it was submitted that that part of the Order which directed the detention of the appellant between the making of the

Surrender Order and his actual surrender to the appropriate Lithuanian authorities was unlawful and his release should be ordered.

Submissions of the Appellant

The appellant submitted that his detention on foot of the warrant issued pursuant to s. 16(4) of the Act of 2003 is unlawful because:

(a) He has not been convicted of any crime or offence and the deprivation of his liberty amounts to a punishment contrary to law;

(b) He was deprived of his liberty solely and exclusively because the European Arrest Warrant Act 2003 was deemed to require his

imprisonment.

(c) This was done simply to convenience his surrender and convenience can never be a basis for depriving a person of his or her liberty.

(d) There is no rational basis for the appellant’s detention. Since the Order for his surrender did not, by virtue of s. 16(3) of the Act of 2003,

have force and effect until fifteen days after it was made there is no rational justification for the Court being obliged to order his imprisonment

pending surrender.

(e) The effect of s. 16(4) was to deprive the High Court of the power to decide whether or not the appellant should be released conditionally on

the basis of an individual assessment of the appellant’s circumstances. This could have been achieved without interfering with the objectives

of the Act and the framework decision on which it is based namely the ultimate surrender of the appellant to the State which issued the

European Arrest Warrant (the issuing State). In removing an inherent jurisdiction of the Court to release the appellant on bail in this manner

the Oireachtas exceeded its powers under the Constitution.

(f) Furthermore, it was submitted, the obligation imposed on the High Court pursuant to s. 16(4) to order the detention of a person pending

actual surrender was disproportionate to the object to be achieved, namely, to ensure that the person was available for such surrender. There

is nothing in the framework decision which would inhibit the High Court from exercising a power to grant bail this being a question for national

law as indicated in Article 12 of the framework decision.

For the reasons summarised above it was submitted that the detention of the appellant was not in accordance with law or in accordance with Article 40.4.1

of the Constitution which provides: “No citizen shall be deprived of his liberty save in accordance with law.”

Submissions of the Respondent and Notice Party

As a preliminary point it was submitted, that the appellant has no locus standi to challenge the constitutionality of s. 16(4) because he had not challenged

the order for surrender made pursuant to s. 16(1).

As to the substance of the appeal Counsel for the State first of all pointed out that the Framework Decision, to which the Act of 2003 gives effect, clearly

leaves the issue of the detention of a person who has been arrested on foot of an EAW to be dealt with by the domestic law of each Member State subject

only to the caveat that the competent authority of each member State must do what it considers necessary to prevent the person absconding. The

submissions of the State made specific reference to Article 12 of the Framework Decision which provides:

“Keeping the person in detention.

When a person is arrested on the basis of a European Arrest Warrant, the executing judicial authority shall take a decision on whether the

requested person should remain in detention in accordance with the law of the executing member State. The person may be released

provisionally at any time in conformity with the domestic law of the executing member State, provided that the competent authority of the said

member State takes all the measures it deems necessary to prevent the person absconding.” (emphasis added).

It was accordingly submitted that it is the domestic law of the State which determines whether a person whose surrender to another State has been

ordered on foot of a European Arrest Warrant may be admitted to bail by the Court making such an order pending the transfer of the person concerned to

the authorities of the requesting State.

That is clearly a correct statement of the law and there was no issue between the parties on that point.

The essence of the submission of the State on the substantive issue is that the appellant and the learned High Court Judge, were incorrect in interpreting s.

16(4) of the Act of 2003 as prohibiting the High Court from exercising an inherent jurisdiction to grant bail where an order for surrender has been made under

s. 16(1). Therefore the premise on which the appellant relies to impugn the constitutionality of the section is unfounded. Section 16 as a whole and in

particular s. 16(4) should be applied on the basis that the High Court still has an inherent power to grant bail.

In other words, the argument on behalf of the Minister, the Attorney General and the Governor, is that it is perfectly permissible for the High Court to grant

bail to a person whose surrender has been ordered pending the final implementation of that person’s surrender to the authorities of the requesting State. It

was submitted that that inherent power to grant bail is of course discretionary, to be granted or refused having regard to the circumstances of the case and

in particular the need to ensure that the person concerned does not abscond.

Counsel for the State submitted that although s. 16(4) provides that the High Court, when making an order for surrender, shall also make an order

committing the person to a prison “there to remain pending his or her surrender”, those words are not sufficiently clear to oust the inherent jurisdiction of the

High Court to grant bail.

It was submitted that in the absence of express provision restricting the Court from granting bail it remains open to the High Court to grant bail to a person

in respect of whom an order for surrender has been made under s. 16(1). The State went further and submitted that even if that submission was not correct

there must at least be an ambiguity as to the interpretation of s. 16(4) on this point. It was submitted that having regard to the principle of “double

construction” the Court should give the provision in question a reading which permits the High Court to grant bail upon an order for surrender being made.

The State also pointed out that any statute which seeks to restrict such an inherent and fundamental power of the High Court to grant bail, and particularly

a power which deals with a person’s liberty, must do so clearly and unambiguously. It was submitted that s. 16(4) is not clear and unambiguous in this

regard.

The State concluded by submitting that there was no clear indication in s. 16(4) that a person detained under that section may not be granted bail by the

High Court. In circumstances where the liberty of an individual is at issue any ambiguity in a statute should be construed in his or her favour. Therefore, it

was submitted the provision should be interpreted so as to allow the High Court to retain its jurisdiction to grant bail even though it has made an order for

the surrender pursuant to s. 16 of the Act of 2003.

The Decision of the High Court

Counsel’s agreed note of the decision of the High Court, approved by the learned High Court Judge was as follows:

“The Honourable Mr. Justice Peart adopted the reasoning of the Court in Minister for Justice, Equality and Law Reform –v- Draisey

(Unreported)(High Court 24th November 2006, Peart J.) and indicated that the reasoning in that case may be referred to as containing the

reasons, insofar as they are relevant, in the instant case.

The Draisey case is one in which Peart J. held that the High Court had no authority to grant bail pending appeal to this Court once an Order for surrender

pursuant to section 16 of the Act of 2003 had been made. (The decision in that case appears to have been qualified by Peart J., in subsequent cases but

nothing turns on that point in this appeal).

Counsel’s note then recited the reasons given by Peart J. in this case in the following terms:

“I am satisfied that the applicant is not in unlawful detention being so on foot of an order made under s. 16(4) of the 2003 Act as amended,

and in my opinion that is a proportionate law, a law, which satisfies the proportionality test insofar as it seeks to achieve clearly set objectives

in the framework decision, namely that the State ensures that a person in respect of whom an order is made is available for surrender at the

appropriate time, and I believe that it does so in a way that does not encroach on the liberties of the respondent any more than is reasonably

necessary for the purpose of achieving that objective.”

Relevant Statutory Provisions

Section 16(1) of the Act of 2003, so far as relevant, provides:

“16.—(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15

(9), the High Court may, upon such date as is fixed under section 13 , make an order directing that the person be surrendered to such other

person as is duly authorised by the issuing state to receive him or her provided that …”

Subsection 4 of s. 16 provides:

“When making an order under this section the High Court shall also make an order committing the person to a prison (or if he or she is not

more than 21 years of age, to a remand institution) there to remain pending his or her surrender in accordance with the order under the

section, and shall inform the person –

(a) that he or she will not, without his or her consent, be surrendered to the issuing State, before the expiration of the period of 15 days

specified in subsection (3), and

(b) of his or her right to make a complaint under Article 40.4.2 of the Constitution at any time before his or her surrender to the issuing

state.”

The reference to ‘order under this section’ is of course a reference to an order referred to in s. 16(1) or 16(2) being an order made by the Court directing that

the person concerned be surrendered to such other person as is duly authorised by the issuing State to receive him or her.

The reference to the 15 days specified in subsection 3 is a reference to that subsection as inserted and substituted by s. 76 of the Criminal Justice

(Terrorist Offences) Act 2005 and provides as follows:

“An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier

date as the High Court, upon the request of the person to whom the order applies, directs”.

The ensuing subsection (5) as amended by the Act of 2005 and subsections (6) and (7) of s. 16 are relevant to the implementation or enforcement of an

order for surrender under the section. They provide as follows:

“(5) Subject to subsection (6) and section 18 , a person to whom an order for the time being in force under this section applies shall be

surrendered to the issuing state not later than 10 days after—

(a) the order takes effect in accordance with subsection (3),

(b) such date (being a date that falls after the expiration of that period) as may be agreed by the Central Authority in the State and the

issuing state.”

“(6) Where a person makes a complaint under Article 40.4.2° of the Constitution, he or she shall not be surrendered to the issuing state while

proceedings relating to the complaint are pending,”

“(7) A person (to whom an order for the time being in force under this section applies) who is not surrendered to the issuing state in

accordance with subsection (5) shall be released from custody immediately upon the expiration of the 10 days referred to in that subsection

unless, upon such expiration, proceedings referred to in subsection (6) are pending.”

Section 16, sub-section 12 of the Act provides for an appeal to this Court in the following terms …”

“An appeal against an order under this section or a decision not to make such an order may be brought in the Supreme Court on a point of

law only.”

Decision

Locus Standi

As a preliminary point it was submitted that the appellant in this case had no locus standi to seek an order pursuant to Article 40.4.2 on the grounds that

he had not appealed either the order of the High Court made pursuant to s. 16(1) for his surrender or that made pursuant to s. 16(4) for his imprisonment

pending surrender. The Court considers it can deal summarily with this argument. The proceedings in which those orders were made were proceedings

pursuant to the European Arrest Warrant 2003. These were determined by the High Court and an order for his imprisonment, pending surrender, was made.

The appellant, being the subject of such an order of imprisonment pursuant to s. 16(4), the Court is satisfied that he has sufficient interest to challenge the

lawfulness of his detention under such an order on the grounds that the said section is allegedly repugnant to the Constitution.

S. 16(4) and the discretion to grant bail

Both parties acknowledge that the power of the High Court to grant bail in lieu of exercising a power to remand a person in prison derives from its inherent

jurisdiction. It is an inherent discretionary power that is exercised when a Court is considering whether imprisonment is required, not for its own sake, as in

the case of imposing a sentence as a punishment after conviction, but for an ulterior or collateral purpose, such as to prevent the evasion of justice by a

person absconding, whether in criminal or extradition proceedings. Generally speaking bail may be granted where the Court is satisfied that admitting the

person to bail, subject to appropriate conditions, will be sufficient to ensure that that ulterior purpose can be served without depriving the person concerned

of his or her liberty.

Indeed both parties also acknowledged the power to grant bail is one which is essential to the safeguarding of the right to liberty of an individual who has

not been convicted of any offence and is a protection for the citizen from unnecessary or arbitrary loss of that liberty.

However, while the State argues that s. 16(4) does not have the effect of ousting that inherent jurisdiction of the Court, the appellant argues to the contrary

by virtue of which he claims the subsection is unconstitutional.

That the inherent jurisdiction of the Courts to grant bail has for centuries been fundamental to the jurisdiction of the Courts to protect the liberty of the

individual has been stated and explained in several authorities of this Court.

Walsh J., stated in the seminal case of Attorney General –v- Callaghan [1966] I.R. 501 at 511

“The jurisdiction of the court to grant bail to accused persons has existed from the earliest times and has been stated to be “as old as the

law of England itself” (see Stephens History of the Criminal Law, Vol. 1, at p. 233).”

He went on to cite the Chief Justice, Lord Russell of Killowen, in Regina v. Spilsbury (1898) 2 QB 615 where Lord Russell in turn cited with approval a

passage from Chitty’s Criminal Law –

“The Court of Kings Bench, or any judge thereof in vacation …. in the plenitude of that power which they enjoy at common, law, may, in their

discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in respect of which

inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a

contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse stealing, libels, and for all

felonies and offences whatever. That the court has this jurisdiction in full cannot be doubted. Not only has it had transferred to it the

jurisdiction which at the commencement of the State was vested in or capable of being exercised by the then High Court of the Supreme

Court of Judicature in Ireland or any division or judge thereof but is, by the very words of the Constitution itself in Article 34, invested with full

original jurisdiction in all matters of law or fact, civil or criminal”.

As Walsh J. also stated in that case (at 513), in a passage relied upon by the appellant:-

“The objective of bail is neither punitive nor preventative. From the earliest times it was appreciated that detention in custody pending trial

could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of

accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted

persons should be held in custody pending trial to secure their attendance at the trial but in such cases ‘necessity’ is the operative test.”

Later in the same judgment Walsh J., stated:

“In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished

in respect of any matter upon which he has not been convicted or that in any circumstances that he should be deprived of his liberty upon

only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the

Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time

of national emergency or in some situation akin to that.” (at 516).

Hardiman J., in Maguire –v- D.P.P. [2004] 3 IR 241 cited the statement of Blackstone in his commentaries on the Laws of England, (Book III). :

“For, the intent of the arrest being only to compel an appearance in court … that purpose is equally answered, whether the Sheriff detains this

person or takes sufficient surety for his appearance, called bail … because the defendant is bailed or delivered, to his sureties upon their

giving security for his appearance; and is supposed to continue in their friendly custody instead of going to gaol.”

In that case, Hardiman J., also stated:

“In considering a bail application, the Courts are exercising one of their most ancient and most fundamental jurisdictions. In Blackstone’s

Commentaries on the Laws of England (Book IV) at page 295 the learned author says: -

“By the antient common law, before and since the conquest, all felonies were bailable, ‘til murder was excepted by statute: so that persons

might be admitted to bail almost in every case.””

If the power to grant bail is fundamental to the historic and common law jurisdiction of the Courts, it has in our modern law constitutional characteristics,

since it is inextricably linked to the protection of the constitutional right to liberty as the judgments of this Court in the O’Callaghan case makes clear.

It was for these reasons that Walsh J., stated:

“In conclusion I wish to state that I completely reject for being without foundation in law, history or reason the submission made to this Court

that bail is a privilege only.” (at 519).

The question arises as to whether subsection 16(4) must be interpreted as ousting the inherent jurisdiction of the High Court to grant bail when exercising

its power to remand a person in prison pending his or her surrender on foot of an order made pursuant to s. 16(1).

The Court considers it appropriate to recall at this point the precise words of s. 16(4):

“When making an order under this section the High Court shall also make an order committing the person to a prison (or if he or she is not

more than 21 years of age, to a remand institution) there to remain pending his or her surrender in accordance with the order under the

section, and shall inform the person –

(c) that he or she will not, without his or her consent, be surrendered to the issuing State, before the expiration of the period of 15 days

specified in subsection (3), and

(d) of his or her right to make a complaint under Article 40.4.2 of the Constitution at any time before his or her surrender to the issuing

state.”

The order referred to in subsection 4 of s. 16 is in the nature of a consequential order following an order of the Court that the person concerned should be

surrendered to the authorities of the requesting State. Clearly the reason for conferring such a power on the High Court is not for the purpose of

imprisonment as such, but for the ulterior or collateral purpose of ensuring that the person concerned is available for surrender when required. As Counsel

for the Minister pointed out that purpose can also be achieved, in appropriate cases, by remanding the person on bail subject to any necessary conditions.

A statute which confers a power on the High Court to deprive an individual of his or her liberty, particularly when the imprisonment as such is not the object

of the provision must be strictly interpreted. In this instance there are no grounds for concluding, as Counsel for the Minister made clear, that the purpose of

the section would be undermined by a release on bail, subject to appropriate conditions, in cases where the Court is satisfied that the purpose of the

section can be achieved without a remand in prison.

The Court is of the view that if the Oireachtas had intended to oust the inherent jurisdiction of the High Court to grant bail in all cases where an order for

surrender has been made, irrespective of the circumstances, it would have explicitly and unambiguously done so. To interpret the subsection otherwise

would be to assume that the Oireachtas intended that persons should be detained for the purpose of their surrender even in cases where such detention

was not necessary for such a purpose. Again the Court does not consider that the section discloses any grounds for such an assumption.

It was submitted by the appellant in the course of argument that the phrase “there to remain pending his or her surrender” was indicative of an intention to

oust the Court’s inherent jurisdiction to grant bail. At most that phrase is simply declaratory of the purpose of the imprisonment, if imposed. It does not alter

the ulterior or collateral purpose of the section and at best it is too oblique a phrase to be a basis for implying an intention to oust a jurisdiction as

fundamental as the discretion to grant bail.

It was also suggested that the presence of an express provision for the granting of bail in other sections of the Act, such as when a person, who has been

arrested on foot of a European Arrest Warrant, is being remanded pending the determination of the application for his or her surrender, leads to the

conclusion that s. 16(4), in failing to provide expressly for the grant of bail, envisaged that bail would never be granted.

While it may be said that the interpretation of any provision of a statute should be considered in the context of its other provisions and indeed in the context

of the Act as a whole, it has to be borne in mind that in this case the issue concerns the inherent jurisdiction of the Court to grant bail when there is no

necessary purpose for the imprisonment of the individual. To conclude that the Oireachtas by omitting to make an express provision permitting the High

Court to grant bail thereby ousted its inherent jurisdiction to do so would be akin to treating the grant of bail as a privilege to be conferred by the State,

contrary to the dicta of Walsh J., cited above. The historic jurisdiction of the High Court to grant bail is not dependant on express statutory provisions.

Accordingly, the Court is of the view that the fact that other sections of the Act make express provision for bail is not in itself sufficient to justify a decision

that a section which is silent as to bail was necessarily intended to oust what the Court has already described as a fundamental and inherent jurisdiction of

the High Court.

For these reasons the Court is satisfied that when the High Court has made an order for surrender of a person pursuant to s. 16 of the Act s. 16(4) does not

oust its inherent jurisdiction to admit the person concerned to bail pending surrender in the exercise of its discretion.

It might be added that it has always been acknowledged that there are certain, strictly limited, circumstances in which the State is entitled to make

provision for the detention of a person, not convicted of a criminal offence, where bail is not an option. These for example include the detention of persons in

connection with the investigation of certain criminal offences pursuant to s. 4 of the Criminal Justice Act 1984, the detention of persons under the Mental

Treatment Act 1945 and now the Mental Health Act 2001, the detention of a person who may be a source of infection from an infectious disease under s.

38(1) of the Health Act, 1947, and the detention of certain immigrants under the Illegal Immigrants (Trafficking) Act 1999. It is not inconceivable that

circumstances could arise in which the Oireachtas would judge it essential to provide for some limited period of detention without bail as being necessary

to ensure that persons were available for surrender to a requesting State in extradition matters. As the Court has found, this is not what the Oireachtas has

sought to do in this instance and the issue of proportionality relied upon by the respondents in the proceedings does not arise in the light of the Court’s

conclusions.

Order

For the foregoing reasons the Court considers as unfounded the appellant’s claim that s. 16(4) of the Act of 2003 is unconstitutional, albeit on grounds

different from those stated in the judgment of the High Court. The appellant claims that he is entitled to an order for his release pursuant to Article 40 of the

Constitution even if, contrary to his submissions, the Court concludes that the High Court has power to grant bail because he was refused bail in the

original and earlier proceedings pursuant to s. 16 of the Act of 2003. If the appellant had applied to the High Court in those separate proceedings for bail and

considered that he was wrongfully refused bail, on whatever ground, he had available to him the ordinary remedy of appeal to this Court against that

decision of the High Court. He chose not to appeal against that order. Whether he was entitled to bail or is now entitled to bail is a matter for judicial

discretion having regard to all the circumstances of the case and the State if they see fit to do so, must have an opportunity of making submissions on that

issue. The consequence of the conclusion of this Court in this case is that the appellant is entitled to apply to the High Court for bail pending his surrender.

It will then be a matter for the High Court to determine whether he should be granted bail. Accordingly the appellant’s application for release pursuant to

Article 40 is refused and the appeal dismissed.