Supreme Court allows release of detainee where High Court precedent binds trial judge on detention limits.

THE SUPREME COURT

[Appeal No: 159/2012]

Fennelly J.

Clarke J.

MacMenamin J.

In the Matter of an Inquiry pursuant to Article 40.4 of the Constitution of Ireland

Between/

Nazih Kadri

Applicant/Appellant

and

The Governor of Wheatfield Prison

Respondent

Judgment of Mr. Justice Clarke delivered the 10th May, 2012.

Introduction

1.1 I agree fully with the judgment delivered by Fennelly J. setting out the reasons why this Court ordered the release of the

applicant/appellant ("Mr. Kadri"). In deference to the High Court line of authority which was followed by the trial judge in

this case, I wish to add a few additional observations. The first concerns the position in which the trial judge found himself

in the light of that line of authority.

2. The Binding Nature of Consistent High Court Case Law

2.1 The jurisprudence of the High Court regarding the proper approach of a judge of that Court when faced with a previous

decision of another judge of that Court is consistent. The authorities go back to the decision of Parke J. in Irish Trust Bank

v. Central Bank of Ireland [1976-7] I.L.R.M. 50. Similar views have been expressed in my own judgment in In Re

Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, by Kearns P. in Brady v. D.P.P. [2010] IEHC 231, and

most recently by Cross J. in B.N.J.L. v. Minister for Justice, Equality & Law Reform [2012] IEHC 74 where Worldport

was expressly followed.

2.2 It seems to me that that jurisprudence correctly states the proper approach of a High Court judge in such circumstances.

A court should not lightly depart from a previous decision of the same court unless there are strong reasons, in accordance

with that jurisprudence, for so doing.

2.3 In his judgment Fennelly J. referred to the series of judgments of the High Court on the point in issue in this case. The

trial judge considered himself bound by that line of authority. In the light of the case law to which I have earlier referred it

seems to me that the trial judge was correct in that approach unless he viewed that line of authority as obviously wrong or

having been arrived at without proper consideration of relevant case law or the like. In my view the trial judge was correct in

the approach he took. In so finding it does not, of course, follow that this Court, now that the matter has come before it and

been fully argued, is likewise constrained. This Court must consider the issue on the merits while of course having proper

regard both to the relevant High Court cases and to the one previous decision of this Court on the point being the judgment

of McGuinness J. in Okorafor v. Governor of Cloverhill Prison & ors (Supreme Court, unreported, McGuinness J. 10th

October, 2003).

2.4 Whatever may be the situation where there is an entirely separate and distinct breach of a deportation order or a relevant

notice (such as the return, after more than a year post-deportation, to the jurisdiction of a deportee such as this Court was

concerned with in Okorafor) I fully agree with the views expressed by Fennelly J. in his judgment in this case that a fresh

incident of the same grounds of breach of a deportation order cannot give rise to an entitlement to commence a second eight

week period of detention or, indeed, any further period of detention where the aggregate of the periods exceeds eight weeks.

That such a course of action is in breach of the clear wording of s.5(6) seems to me to be clear for the reasons advanced by

Fennelly J. The only other issue on which I would wish to add a number of observations derives from the potential impact

of the Interpretation Act, 2005 to which I now turn.

3. The Interpretation Act, 2005

3.1 Some reliance was placed by counsel on behalf of the respondent governor on the provisions of the 2005 Act and in

particular s.5(1) of same which concerns the proper approach of the court to the construction of ambiguous legislation or

legislation in which an obvious mistake may be found.

3.2 Section 5(1) provides as follows:-

"5.—(1) In construing a provision of any Act (other than a provision

that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates,

the Oireachtas, or

in the case of an Act to which paragraph (b) of that definition relates, the parliament

concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or

parliament concerned, as the case may be, where that intention can be ascertained from the Act as a

whole."

3.3 There are a number of features of that section which seem to me to be of some importance. First, it should be noted

that no argument was addressed which suggested that s.5 had no application to this case because of the exclusion of "penal"

provisions from its ambit. That does not, of course, mean that the Court may not be more circumscribed in the scope of its

interpretative remit in cases, such as this, which involve personal liberty.

3.4 Second, s.5 is a section which speaks of the court giving a construction or interpretation to relevant provisions. It must

be borne in mind, therefore, that the mandate given to the courts by s.5 is one to engage in construction or interpretation

rather than rewriting.

3.5 In that context it is, perhaps, of some relevance (without pushing the analogy too far) to consider the extent to which the

court has a jurisdiction to correct obvious mistakes in contracts. In considering that area of law in Moorview Developments

Limited & ors v. First Active plc & ors [2010] IEHC 275, I noted, at para. 3.5 of my judgment, the following:-

"This aspect of the case concerns what has, in some of the case law, (see for example East v. Pantiles (Plant Hire) Ltd

(1981) 263 E.G. 61) been described as “correction of mistakes by construction”. As is clear from East and from the

speech of Lord Hoffman in Investors Compensation Scheme Ltd v. Bromwich Building Society [1998] 1 W.L.R. 896, two

conditions must be satisfied in order for such a correction to occur. First, there must be a clear mistake. Second, it must

be clear what the correction ought to be."

3.6 It seems to me that there is at least a broad similarity between that area of jurisprudence and the intent behind at least

aspects of s.5(1) of the Interpretation Act, 2005. It is important to note that the construction which that section requires is

one that "reflects the plain intention of (the legislature) where that intention can be ascertained from the Act as a whole".

It is clear, therefore, that it not only is necessary that it be obvious that there was a mistake in the sense that a literal reading

of the legislation would give rise to an absurdity or would be contrary to the obvious intention of the legislation in question,

but also that the true legislative intention can be ascertained. There may well be cases where it may be obvious enough that

the legislature has made a mistake but it may not be at all so easy to ascertain what the legislature might have done in the

event that the mistake had not occurred.

3.7 Third, it is worth noting that the first part of s.5(1) concerns ambiguity or obscurity. For the reasons advanced by

Fennelly J. it seems to me that the wording in this case is clear and does not admit of any ambiguity or obscurity. The

second part of the section concerns mistakes in the sense addressed in the previous paragraph. It may well be that there is a

difficulty with the fact that the legislation, does not address what is to happen in circumstances such as arose in this case

where a detained person, in the latter part of an eight week period, so strenuously resists deportation that it proves

impossible to give effect to deportation within the eight week period. That the legislature might have wished to make some

provision for such a situation could well be considered likely. However, it seems to me that the construction argued for on

behalf of the governor in this case falls foul of s.5(1) in two respects.

3.8 First it does not seem to me that the literal construction is absurd. There were sound policy reasons for imposing a time

limit on a form of detention that might, if it could be open-ended, be considered unjust and, possibly, unconstitutional. The

reason for imposing a time limit on the aggregate amount of detention was, as Fennelly J. has pointed out and as I agree, for

the reasons set out by Herbert J. in the High Court, (unreported, High Court, Herbert J., 30th September, 2003) in Okorafor

being to prevent the use of multiple periods to get round the eight week limit. Neither does the imposition of such an eight

week limit appear to be contrary to obvious legislative intent.

3.9 This is not, therefore, a case where a literal construction of the legislative measure is absurd or fails to reflect the clear

legislative intent. Rather this is a case where it may well be that, had the Oireachtas properly addressed its mind to the

question, it might have considered including some additional provisions in the Act to allow the eight week period to be

extended in appropriate circumstances. However, it is by no means clear as to what precise provisions would have been

included by the Oireachtas had it so addressed that question. Would, for example, it have been considered appropriate to

allow the period of eight weeks to be extended without some form of safeguard such as an application to a senior member of

An Garda Síochána or a court. Would the extended period necessarily have lasted for a further eight weeks or might it have

been appropriate to require some consideration of how long further was necessary, in all the circumstances, to put in place

appropriate measures to deal with the situation which had arisen. Who would it have been considered ought have to be

satisfied that the real reason for the inability to give effect to the deportation order within the eight week period (including

any aggregation of lesser periods) was the deportee him or herself. Should that decision be taken by a senior member of An

Garda Síochána or, perhaps, again by a judge.

3.10 I raise all of these questions not for the purposes of indicating that this Court has any necessary role in deciding the

answers. Rather I raise them to demonstrate that the precise type of measure which could or should have been put in place

to deal with the sort of problems which arose in this case are not a given. The introduction of those measures requires, as

Fennelly J. has said, legislation, and cannot be introduced in the detailed manner required by a strained (beyond the point of

breaking) interpretation. To use s.5 of the Interpretation Act, 2005 to justify the regime argued for on behalf of the governor

would, in my view, be to use (or perhaps abuse) a section which mandates a sensible or purposive construction to, in effect,

rewrite the legislation by inserting a series of detailed measures to which the Oireachtas did not address its mind. In my view

such a course of action would not be warranted.

4. Conclusion

4.1 For those reasons I agree with the judgment of Fennelly J. and with the order for the release of Mr. Kadri already made

by the Court. I would also add my agreement to the judgment about to be delivered by MacMenamin J. and in particular to

his characterisation of the current situation as one which requires legislative intervention.