Supreme Court allows appeal on Article 40 habeas corpus despite technical mootness due to systemic importance.

THE SUPREME COURT

Appeal No: 521/2012

Denham C.J.

Hardiman J.

O’Donnell J.

Clarke J.

MacMenamin J.

Between/

Michael Farrell

also known as Regan

Applicant/Respondent

and

The Governor of Saint Patrick’s Institution

Respondent/Appellant

Judgment delivered on the 10th of April, 2014, by O’Donnell J.

1 I respectfully agree with the judgment of the Chief Justice that the stay granted by Birmingham J. did not prevent the District Court

making an order remanding the applicant on the 28th of June 2012. I also agree that even if the proceedings are technically moot,

this is an appropriate case to hear the appeal because of the systemic importance of the effect of a stay order granted in judicial

review proceedings. However, in addition to the foregoing, I consider that the appeal is not truly moot in any sense, and wish briefly

to set out my reasons for so concluding.

2 The remedy of Article 40.4 is the great remedy available to citizens and all persons with access to the jurisdiction of these courts.

Its strength is its simplicity and its speed. It is meant to address – forthwith – the question of the lawfulness of the custody or

detention of any individual. The order which the Court makes at the conclusion of the inquiry is either to order the release of the

person, or not. The urgency with which the courts are obliged to, and do, treat such applications is itself an illustration of the

importance of the Constitution attached to this remedy as a foundation of liberty within the State itself and essential component in

the constitutional order created by the Constitution. Liberty, in the full meaning of the word is fundamental to both the exercise and

enjoyment of the rights identified in the Constitution and the functioning of the democratic structure created by it. But the fact that

such matters must be dealt with speedily by the High Court, and where necessary on appeal by this Court, can also mean that the

law can develop in a staccato fashion with each individual case no more than an illustration of the reasons why the remedy was

granted or refused in that case. Much of the case law has been gathered, and valuably analysed in Dr Kevin Costello’s impressive

work The Law of Habeas Corpus in Ireland (Dublin; Four Courts Press; 2006), but that exercise in scholarship only illustrates the

desirability of more comprehensive review by reference to principle and authority.

3 The timeline in this case is relatively simple. The applicant was in custody on other offences but due to be released on the 4th of

July 2012. Separately he was charged with road traffic offences in respect of which he was remanded in the District Court from time

to time, with consent to his own bail of €300 and an independent surety in the same amount. On the 25th of June 2012 an ex parte

application was made to the High Court for judicial review seeking in effect, the provision of legal aid for the defence of the Road

Traffic Act proceedings. Birmingham J. granted leave to seek judicial view, and as is normal in such cases, granted the stay on

proceedings in the District Court. This was only logical since the applicant’s complaint was that if the trial on the Road Traffic Act

offences was to proceed without legal aid it would be a breach of his constitutional rights. The terms of the stay are entirely

standard, and are set out in the judgment of the Chief Justice.

4 The 28th of June is the critical day in these proceedings. The Road Traffic Act proceedings were once again before the District

Court. It was now however contended on behalf of the applicant that the court could simply make no further order remanding the

applicant in custody even with consent to bail because, or so it was contended, the proceedings had been stayed by the High Court.

The learned District Court Judge disagreed and made an order remanding the applicant until the 5th of July. On the 4th of July his

sentence on the other offences expired and an immediate application was made for an inquiry under Article 40 giving rise to these

proceedings. On the 5th of July the matter came before the District Court again which made no further order with the effect that the

applicant was released from custody on that day. The urgency had now been removed from the proceedings and the High Court

proceedings could proceed at a more appropriate pace. The full inquiry came on for hearing on the 15th of October and the learned

High Court judge delivered a judgment on the 19th of that month holding first, that the proceedings were not moot, and second, that

the District Court had no jurisdiction to make any order on the 28th of June. However, the court was no longer in a position to make

the order contemplated under Article 40.4 directing the release of the applicant, and accordingly made a declaration that the

applicant was entitled to have been released from custody on the 4th of July 2012.

5 From that decision, the appellant appeals to this court. It is however contended that the appeal is moot. That is a claim which in

these proceedings the court is required to scrutinise with some care.

6 The liberty of the citizen is vital to the constitutional order and something which the courts and every other institution are bound to

vindicate without fear or favour but it should be said, that in practical terms the liberty of this citizen could have been achieved

without the drama of these proceedings. First, he had been remanded in custody it is true, but with consent to bail in the sum of

€300 and an independent surety in the same amount. It was not suggested that securing of this bail posed any insuperable difficulty

for him and there was ample time to have any surety approved before the expiry of the sentence so that he would not have to be

remanded in custody in these proceedings. Accordingly, the applicant could, with the assistance of his representatives, have secured

his own release by the 4th of July and before the swiftest lawyer could have brought proceedings and the most conscientious judge

made any order. Second, while the focus of this case has been the validity of the order of the District Court of the 28th of June, the

key to that validity lay in the interpretation of the order granted by the High Court on the 25th. If there was real doubt or

controversy as to what was meant by that order it could have been addressed with the High Court before the launching of an inquiry

under Article 40. There can be little doubt that the High Court did not intend that the granting of a stay should bring the proceedings

to an end, but that could have been clarified if thought necessary, by a variation of the stay. Third, any possible mootness affecting

these proceedings arose from the fact that the applicant had been released from custody on the 5th of July. If such mootness

existed, this frailty affected the High Court proceedings just as much as these proceedings. Once the High Court Judge decided to

proceed with the hearing, then as a matter of both justice and common sense, there could be no objection to an appeal from the

correctness of that determination. If it were not for the curiosity that it was the appellant who had sought to insist that the case

was heard in the High Court, mootness could just as easily have been a ground of appeal as a ground for seeking to resist it. Finally,

it may be that a distinction should be made between the effect of release on appeals by applicants and those by respondents. An

applicant who has been released may have difficulty in explaining why it is necessary to hear an appeal in proceedings specifically

directed to ordering his or her release. However mootness by reason of the fact that the applicant has now been released from

custody may be an inappropriate ground to resist a respondent’s appeal under Article 40.4. Because it is considered that neither the

High Court nor this Court has power to grant any stay on an order directing the release of a person there would be no way of avoiding

mootness. If the release from custody rendered an appeal automatically moot then no appeal would be possible from a decision to

release, no matter how erroneous. The decision would moreover remain uncorrected and available as a precedent in future cases,

which if they followed the same course would themselves become unappealable on grounds of mootness. That complication does not

necessarily arise here, but, in the circumstances of this case, once the hearing was embarked upon in the High Court there was no

good reason not to hear the appeal, even if technically moot, and many good reasons to do so.

7 However, it seems to me that the appeal was not moot in any real sense of the word. Mootness is an issue which can arise in

Article 40 inquiries when for various reasons the applicant is at liberty. There is, to put it as it lowest, some difficulty about making

orders for release or non release under Article 40 of a person who has long since left custody. However here, the fact that the

release had occurred before the High Court hearing meant that the court could not make any such order, and instead made a

declaration that the applicant was entitled to have been released on the 4th of July. Assuming for the moment that such an order

could validly be made under an Article 40 inquiry, that declaration together with a consequential order for the costs of the initial

application and for 80% of the costs of the hearing of the inquiry, remains in place. It is a declaration of the legal position between

the parties, which is binding upon them. As long as it remains in place, and is in any way capable of affecting the rights and

obligations of the parties (and moreover providing a legal basis and justification for the order for costs) I consider that the respondent

was entitled to appeal it as of right and the proceedings could not be said to be moot. If however, this is too narrow a view, I also

express my agreement with the Chief Justice, that even if the appeal is considered to be moot, it is one that the court should hear

and determine.

8 On the substance of the appeal, I also agree that once it was conceded that the High Court stay was not absolute, and did permit

the District Court to do some things, it could not be maintained that it was not in a position to make one further remand in custody

with consent to bail, which maintained the status quo. This is a conclusion I reach with some relief, since otherwise a High Court

judge hearing an ex parte application for judicial review might be slower to grant a stay than might otherwise be the case, or might

have to routinely require argument at which the respondent would be present, on the terms of any stay. Such a course may be

necessary in cases of any complexity but it would be undesirable to have this additional time and cost incurred in routine cases.

9 Finally, I note that the argument in the High Court and this court proceeded on a shared assumption that if the stay in the High

Court was to be interpreted as preventing any order being made in the District Court (and even if that went further than the High

Court may have intended), the District Court would lack all jurisdiction to make any order for detention of the accused, so that the

order of the District Court would not be a valid return to an Article 40 inquiry. Since that matter was not explored in argument, and is

I hope unlikely to arise in practice, I express no view upon it.