High Court dismisses Article 40.4.2 release application for contempt detention as order is valid on its face.

[2017] IEHC 569

THE HIGH COURT

[Record No. 2017/929 S.S.]

IN THE MATTER OF AN APPLICATION UNDER AND IN ACCORDANCE WITH ARTICLE 40.2 OF BUNREACHT NA HÉIREANN

BETWEEN

B.L.

APPLICANT

AND

THE GOVERNOR OF CASTLEREA PRISON

RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice Binchy delivered on the 24th day of August, 2017

1. On 22nd August, 2017 this Court (Barrett J.) made an order directing an inquiry into the lawfulness of the detention of the

applicant. The applicant brought forward this application on notice to the respondent and the matter came before the Court, the

following day, 23rd August, 2017.

2. The applicant claims that his arrest and detention pursuant to an order of his Honour Judge Keenan Johnson of the Circuit Court

made on 28th July, 2017 is unlawful and unconstitutional and seeks his release under Article 40.4.2 of the Constitution.

3. On 28th July, 2017 Judge Johnson made an order for the arrest and committal of the applicant in the following terms:-

“The Commissioner and members of the Garda Síochána are hereby requested and authorised forthwith to take the respondent B.L. in

to her and their custody and to deliver him, the said B.L. to the Governor of Castlerea Prison, at Castlerea in the County of

Roscommon, and the said Governor is hereby authorised and required to receive the said B.L. and safely keep him in the said prison

until such time as he has been deemed by the Court to have purged his contempt for his failure to comply with the terms of the order

of this Honourable Court made on 8th April, 2008 directing the payments of maintenance to the applicant now in arrears and currently

standing at €41,700.00 and until such time as the said arrears of maintenance have been discharged or until he is discharged from

thence by competent authority and by due process of law and for this the present warrant should be sufficient authority to all whom

it may concern.”

On foot of that order, the applicant was detained and remains detained in Castlerea prison since 28th July, 2017.

4. The application is grounded on the affidavit of the applicant’s solicitor, of 21st August, 2017. The applicant’s solicitor deposes that

the proceedings giving rise to the order for the arrest and committal of the applicant have an acrimonious history. She refers to many

adverse orders made against the applicant extending back to 2008. She said that the applicant has made efforts over the years to

vary the amounts payable by him by way of maintenance to his former spouse pursuant to court orders, varied. She deposes he is no

longer working and is currently in receipt of €180.00 per week by way of social welfare payments.

5. She deposes that the applicant is impecunious and that he will never be able to discharge the arrears due pursuant to the order of

the Circuit Court of 8th April, 2008, referred to in the order of his Honour Judge Johnson of 28th July, 2017.

6. The affidavits sworn by the applicant’s solicitor refers to judicial review proceedings issued by the applicant under Record No.

2016/336 J.R., and which were the subject of a determination of White J. dated 22nd May, 2017. It appears from the papers exhibited

that those proceedings had no relevance to this application and relate to an order of the Circuit Court made on 18th February, 2016.

It further appears that the applicant was unsuccessful in his application to have that order quashed, and that he has appealed the

decision of White J. to the Court of Appeal, and that that appeal remains extant. The decision of White J. was handed down on 22nd

May, 2017.

7. Prior to the moving of this application, the applicant’s partner had moved an application on behalf of the applicant and with his

authority before Moriarty J. It is not clear on what date that application was moved but it was grounded on the affidavit of the

applicant’s partner, of 3rd August, 2017. It appears however that Moriarty J. did not grant the relief sought and instead recommended

that the applicant should retain the services of a solicitor with a view to renewing the application.

8. The application came before the Court on 23rd August.

9. In simple terms the applicant argues that the effect of the court order of 28th July, 2017 is to impose a sentence of life

imprisonment upon the applicant because he does not have the means with which to discharge the arrears due to his former wife

pursuant to the order of the Circuit Court (Judge Nolan) dated 8th April, 2008. It is argued on behalf of the applicant that the order of

Judge Johnson of 28th July, 2008 contains a fundamental flaw of the kind referred to by Denham CJ. in the case of Edward Ryan v.

Governor of Midlands Prison [2014] I.E.S.C. 54, and accordingly the Court should direct the release of the applicant. That

fundamental flaw, counsel submits, is that the Court has made an order of indefinite duration which will have the effect of imprisoning

the applicant for the remainder of his life, together with the fact that there is no reality in the order being complied with. It is

submitted that on the authorities referred to by Mr. Toal B.L., it is not permissible for a court to make an order of indefinite duration

when the court is exercising its jurisdiction in matters of civil contempt. The Court was referred to a number of authorities including:

Laois County Council v. Hanrahan [2014] IESC 36, Byrne v. Governor of Wheatfield Prison [2015] I.E.H.C. 166, Dublin City Council v.

McFeeley [2012] I.E.S.C. 45, O’Shea v. Governor of Mountjoy Prison [2015] IECA 101 and K.B. v. District Judge Kennedy [2015]

I.E.H.C. 745.

10. These authorities clearly identify the distinction between cases involving criminal contempt and cases involving civil contempt.

11. It is clear that in cases involving criminal contempt, the object of an order of incarceration is to punish the offender for what he

has done, and accordingly any term of imprisonment imposed must be of a definite duration.

12. Civil contempt, on the other hand, is concerned for the most part with bringing about a compliance with an order of the court and

in such matters the purpose of an order is coercive. It is absolutely clear from the authorities that in such circumstances the term of

imprisonment should be indefinite, provided that once the default has been remedied the order for committal ceased to have effect.

As O’Malley J. noted in K.B. v. Judge Kennedy at para.59:-

“Where the judge forms the view that the coercive power of the court is required, the committal must be for an indefinite

period. Under the District Court Rules, the judge must inform the contemnor of the steps required to purge the contempt

…”

13. The authorities acknowledge that a court in exercising its jurisdiction in matters of civil contempt may feel the need to mark its

disapproval of particular conduct which it views as being especially offensive. This will occur more readily where there are significant

public interest matters at issue or were the behaviour is question is threatened to the court itself. In such cases the jurisdiction of

the court may be both coercive and punitive.

14. In Laois County Council v. Hanrahan, McKechnie J. said that in such matters it is of vital importance for the Court to distinguish

sharply between its coercive intent and its punitive intent. He explains that the reason for this is that when exercising its punitive

jurisdiction, the punishment is intended to reflect past conduct and any punitive element involving incarceration must therefore be for

a fixed term.

15. In this case, I think it is perfectly clear from the face of the order of Judge Johnson that he was exercising a coercive jurisdiction

only: the order directs the incarceration of the applicant until he has complied with the order of the Circuit Court of 8th April, 2008 in

full, by discharging all arrears. There is no punitive intent indicated on the face of the order.

16. Insofar as the applicant submits that he will never be able to comply with the order of the Circuit Court of 8th April, 2008, by

reason of his financial circumstances, that is not a matter that falls to be determined on an application made pursuant to Article 40 of

Bunreacht na hÉireann. This is clear both from the decision of the Supreme Court in Ryan v. Governor of Midlands Prison and the

Court of Appeal in O’Shea v. Governor of Mountjoy Prison.

17. In Ryan, Denham CJ. Stated at para. 18:-

“Thus the general principle of law is that if an order of a Court does not show an invalidity on its face, in particular if it is

an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas

corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial review. In

such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental

denial of justice, or a fundamental flaw.”

18. I have already dealt with the applicant’s arguments as regards a fundamental flaw. However, counsel also submitted that there

had been a fundamental denial of justice as the applicant was not in Court, or was not represented, when the order for his committal

was made. No reference was made to this in the affidavit grounding this application. Accordingly, counsel for the respondent was not

on notice at this point. Nor was counsel for the respondent able to say whether or not this was correct. If the applicant was not on

notice of an application for his committal or if through no fault of his own he was not present when the application proceeded, then

undoubtedly that would constitute a fundamental denial of justice which will give rise to an order for his release. But that is an

argument that would have to be made upon affidavit and to which the respondent would have to have an opportunity to reply. It is

not an argument that can be made on the basis of a submission of counsel at the hearing of the application. Nor can it be advanced,

as was suggested by counsel, by the applicant himself giving evidence at the hearing of the application, because the respondent

would require an opportunity to take instructions and put in a reply.

19. In O’Shea v. Governor of Mountjoy Prison, Ryan P. was dealing with an Article 40 application which also arose out of the

imprisonment of the applicant on grounds of contempt. The orders for attachment and committal were made by Hunt J., arising out of

non-compliance by the applicant with orders made by Laffoy J. Ryan P. had this to say in relation to the application at para.9:-

“Habeas Corpus is a valuable and important remedy, but certainly in the case of a High Court order, which is the basis of

the detention of the person in question, the court has a relatively limited function. The Court is not concerned in this

case with whether the order made by Hunt J. was based on evidence that was correct or not correct. I will come to what

can be done about that if the applicant wishes to challenge it… But it was not a matter for Gilligan J. (who conducted an

Article 40 enquiry) to say: let us start back at the beginning with the situation before Laffoy J. came to her decision. He

is not reviewing the decision as to Laffoy J. as to whether she was right to give an injunction or whether she should not

have given an injunction or whether she should have given one in that particular form. That was not before the High

Court. Neither was it before the High Court to say: let us look at the evidence that was before Hunt J. and see if he got

it right or perhaps he was making a mistake. Again, there are issues and options there but one of them was not in the

High Court to challenge that on Thursday and Friday last. The question was – was the detention valid?”

20. I am satisfied that the order of the Circuit Court in this case is valid on its face and there is no evidence before the Court as to a

fundamental denial of justice, or a fundamental flaw.

21. I might add that it is trite law to say that a person cannot be committed to prison for contempt of court if it is impossible for that

person to comply with the order in respect of which the application for his contempt is made. But it is a matter for a person in such

circumstances to satisfy the Court that it is impossible for him to do so. The applicant clearly failed to satisfy the Circuit Judge that

this was the situation, but he has the entitlement to appeal the order of the Circuit Court (and if necessary to apply for an order

extending time to appeal) or to bring forward an application for judicial review. In either case it appears in the authorities that the

Court has jurisdiction to consider whether or not it is appropriate for the applicant to enter a cogeneses and for the Court to fix bail.

22. I therefore refuse the applicant’s application for release under Article 40.4.2 of the Constitution.