IEHC 440 — IEHC 440 — High Court

APPROVED [2026] IEHC 440

AN ARD-CHÚIRT THE HIGH COURT 2026 No. 983 SS IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND BETWEEN KENNETH KELLY APPLICANT AND THE GOVERNOR OF WHEATFIELD PRISON RESPONDENT Ex tempore JUDGMENT of Mr Justice David Keane, delivered on 3 July 2026 Introduction 1. This is an inquiry, pursuant to Article 40.4.2° of the Constitution of Ireland, into whether Kenneth Kelly (‘the applicant’) is detained in accordance with law. The respondent is the Governor of Wheatfield Prison (‘the Governor’) but, given the nature of the applicant’s challenge to the lawfulness of his detention, the Director of Public Prosecutions (‘the Director’) has assumed the role of legitimus contradictor on the Governor’s behalf.

2. The applicant contends that his post-conviction detention in respect of a sentence of six years imprisonment imposed on him by Wexford Circuit Criminal Court on 26 June 2024 in respect of three offences to which he pleaded guilty on 29 May 2024 is unlawful for want of jurisdiction because the order of Wexford District Court of 23 April 2024 returning him for trial is invalid on two separate, though related, grounds: first, because the Director failed to expressly communicate to the District Court that she had given a direction under s. 45(2) of the Offences Against the State Act 1939 (‘the Act of 1939) that two of the charges, which are for scheduled offences, were to be tried otherwise than before the Special Criminal Court; and second, because the return for trial failed to recite on its face that the Director had given such a direction in respect of those charges. The applicant asserts that each of those failures amounts to a fundamental defect that rendered the return for trial invalid and deprived Wexford Circuit Criminal Court of any lawful jurisdiction to make any orders on foot of it.

3. The applicant contends that he remains entitled to an Article 40.4.2° inquiry into the lawfulness of his post-conviction detention on that basis, despite his plea of guilty to the relevant charges, and despite his failure to raise the issue – in a timely manner or at all – while legally represented before the District Court, the Circuit Criminal Court and the Court of Appeal.

Procedural history 4. On Friday, 19 June 2026, a complaint was made on behalf of the applicant to the High Court seeking an Article 40.4.2° inquiry. The court directed that the Governor certify in writing the grounds of the applicant’s detention. The Governor did so on 22 June. On Monday, 22, or Tuesday, 23 June 2026 (it is not clear which, although nothing turns on that), the court directed that the parties each be furnished with a copy of the digital audio recording (‘DAR’) of the proceedings before Wexford District Court on 23 April 2024 when the applicant was returned for trial to Wexford Circuit Criminal Court. The inquiry then took place before me on Friday, 26 June 2026.

The grounds of the applicant’s detention 5. The Governor has certified the grounds of the applicant’s detention as those set out in a scheduled committal warrant, dated 26 June 2024. That warrant recites that the applicant is to be received into custody as the person convicted on a plea of guilty on 29 May 2024, and sentenced on 26 June 2024, in Wexford Circuit Criminal Court for three identified offences (described in greater detail below).

Background 6. The application is grounded on an affidavit sworn by Pauric Hyland, the applicant’s solicitor, on 17 June 2026. That affidavit exhibits an order of Wexford District Court, made on 23 April 2024, sending the applicant forward for trial on the offences numbered 1 – 4 as set out in the statement of charges in the book of evidence to the (then) current sittings of Wexford Circuit Criminal Court. The prosecutor is identified as the Director of Public Prosecutions at the suit of Garda Gavin Tracy and the defendant is identified as the applicant.

7. That affidavit also exhibits the statement of each of those four charges. In summary, they comprise:

(1) An offence of demanding money with menaces on 31 January 2024, contrary to s. 17 of the Criminal Justice (Public Order) Act 1994, as amended.

(2) An offence of making a threat to kill or cause serious harm on the same date, contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997.

(3) An offence of unlawful possession of a firearm on 2 February 2024, contrary to s. 2 of the Firearms Act 1925, as amended.

(4) An offence of unlawful possession of ammunition on the same date, contrary to s. 2 of the Firearms Act 1925, as amended.

8. Mr Hyland avers that, when the applicant came before Wexford Circuit Criminal Court on 29 May 2024, he entered pleas of guilty to each of the offences of demanding money with menaces, unlawful possession of a firearm, and unlawful possession of ammunition, and that a nolle prosequi was later entered on the offence of making a threat to kill or cause serious harm. The affidavit exhibits the rule of court on the sentence imposed by His Honour Judge James McCourt at Wexford Circuit Criminal Court on 26 June 2024, which records that the applicant was sentenced to 6 years imprisonment for the offence of demanding money with menaces and that each of the two offences of possession of a firearm and possession of ammunition contrary to s. 2 of the Firearms Act 1925, as amended, were taken into consideration. 9. The applicant appealed against the severity of his sentence to the Court of Appeal, which dismissed that appeal on 20 November 2025; People (DPP) v Kelly, [2025] IECA 253. Mr Hyland acknowledges that the issue the applicant now seeks to raise was not raised in either the Circuit Criminal Court or the Court of Appeal. Nor was it raised in the District Court, although the applicant was legally represented at every stage of the process. Mr Hyland avers that the issue only became evident to him as a result of an unrelated discussion that he had with counsel at the end of May 2026 about the requirements of a valid return for trial in respect of offences scheduled under the Act of 1939 that are to be tried before the ordinary courts.

10. The Director’s contention that the applicant is in lawful custody is grounded on the affidavit of Deirdre Byrne, a solicitor in the Director’s office, sworn on 26 June 2026.

11. Ms Byrne avers that the digital audio recording of the application for return for trial made in Wexford District Court on 23 April 2024 was obtained pursuant to the direction of the High Court. The relevant recording runs from 12:21:02 to 12:24:34. Ms Byrne avers that, in ease of the parties and the court, she has prepared a transcript, which she exhibits to her affidavit. In material part, it reads as follows:

‘Unidentified Garda Sergeant: Judge, the application is to send the matter forward to the current sittings of the Circuit Court sitting in Wexford. There are four counts on the book, Judge. Mr Kelly is in custody.

Judge: Thanks very much. I note that the Book of Evidence has been served on the defendant by Garda Ryan and, accordingly, I send [the applicant] forward for trial to the present sittings of Wexford Circuit Criminal Court sitting in the Courthouse in Wexford….

…

Judge: Legal aid for Pauric Hyland and one counsel, thank you. Is everything going forward, Sergeant, or is it just…?

Garda Sergeant: It is, Judge.

Judge: Grand.’

12. Ms Byrne avers that, prior to the return for trial, on 14 March 2024, the Director did issue a direction in writing to the State Solicitor that the matters could be tried in the Circuit Court, including a stipulation that the two scheduled offences were deemed suitable for trial in the ‘ordinary courts’ and not in the Special Criminal Court.

The relevant legal framework 13. Offences under the Firearms Acts 1925 to 1971, as amended, are scheduled offences for the purposes of Part V of the Act of 1939, under the Offences Against the State (Scheduled Offences) Order 1972 (S.I. No. 142 of 1972). The offence of possession, use or carriage of a firearm or of ammunition, under s. 2 of the Firearms Act 1925, as amended, is an indictable offence under s. 2A of that Act, as substituted by s. 27(a) of the Criminal Justice Act 2006.

14. Section 45(2) in Part V of the Act of 1939 states:

‘Whenever a person is brought before a justice of the District Court charged with a scheduled offence which is an indictable offence and such justice sends such person forward for trial on such charge, such justice shall (unless the [Director] otherwise directs) send such person forward…for trial by a Special Criminal Court on such charge.’

15. The term ‘ordinary courts’ does not appear in s. 45(2) of the Act of 1939. However, under s. 36 of the Act, the enabling provision whereby the Government is empowered to declare offences of any particular class or kind under any particular enactment to be scheduled offences for the purposes of the Act, the condition precedent is that the Government ‘is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order’. This, of course, directly mirrors the express wording of Article 38.3.1°, whereby ‘special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.’ And the true significance of that constitutional provision, in the context of the imperative under Article 38.1 that ‘no person shall be tried on any criminal charge save in due course of law’, is that, under Article 38.5, the trial of offences under Article 38.3 is one of the limited categories of exception to the fundamental principle that ‘no person shall be tried on any criminal charge without a jury.’

16. Thus, in being sent forward to Wexford Circuit Criminal Court rather than the Special Criminal Court, the applicant was benefiting from the disapplication of what would otherwise have been a lawful restriction on his right to a jury trial. Had the applicant raised the argument he now seeks to make in the District Court at the appropriate time, he would, in effect, have been arguing that the District Court could not be satisfied that he was not lawfully deprived of the right to jury trial on the two Firearms Act charges against him, so that he should be sent forward to the Special Criminal Court on those charges instead.

No explicit communication of the s. 45(2) direction to the District Court 17. The first ground on which the applicant contends his return for trial is invalid is that the Director failed to explicitly communicate to the District Court her direction under s. 45(2) of the Act of 1939 that the two charges for scheduled offences were to be tried otherwise than before the Special Criminal Court.

18. As the digital audio recording confirms, the application made on behalf of the Director in Wexford District Court was to send the applicant forward for trial on each of the four indictable offences contained in the statement of charges in the book of evidence to the (then) current sittings of Wexford Circuit Criminal Court. There is no doubt that the Circuit Court is one of the ordinary courts, as those courts are defined in contradistinction to the special courts that may be established under Article 38.3.1° of the Constitution.

19. It is common case that, in making that application, the prosecution did not explicitly state that, on each of the two Firearms Act charges, this was pursuant to a direction under s. 45(2) of the Act of 1939, failing which it would have been necessary instead to apply to send the applicant forward for trial on each of those two charges to the Special Criminal Court.

20. Ms Byrne avers that, in her professional experience as a solicitor in the Office of the Director of Public Prosecutions, best practice would be for the existence of a direction under s. 45(2) to be explicitly communicated to the District Court in terms. That is undoubtedly so. But the question I must address is whether the failure to do so is fatal to the validity of the return for trial.

21. The Director submits that the order that the prosecution sought necessarily implied the existence of such a direction in respect of the Firearms Act charges. The uncontroverted evidence before me is that the Director had given that direction in writing in respect of those charges. Moreover, in material part, s. 8 of the Garda Síochána Act 2005 states that, in conducting a prosecution in the name of the Director in a court of summary jurisdiction, a member of An Garda Síochána shall comply with any applicable directions (whether of a general or specific nature) given by the Director; and that, if a prosecution is conducted by a member of An Garda Síochána, that member is presumed to have complied with the section and with any applicable direction given by the Director under the section. Thus, in seeking a return to Wexford Circuit Criminal Court, as one of the ordinary courts in the State, the Garda sergeant conducting the prosecution in Wexford District Court had to be presumed to be acting, as indeed he was, in compliance with an applicable direction of the Director. Given also that the District Court judge was content to make an order returning all four charges for trial to Wexford Circuit Criminal Court on that basis, it is reasonable to conclude that the existence of a direction under s. 45(2) of the Act of 1939 on each of the two Firearms Act charges had been implicitly communicated to the District Court judge.

22. The existence of a direction in this case serves to distinguish it from the judgment of the High Court in Ward v Director of Public Prosecutions [2007] 1 IR 421 (‘Ward'). That was a case in which the applicants for judicial review had been sent forward for trial on indictment to the Circuit Criminal Court for scheduled offences without the necessary direction under s. 45(2) of the Act of 1939. The Director then entered a nolle prosequi in that court. When the applicants were discharged, they were immediately re-arrested and charged with the same offences. The applicants unsuccessfully argued that the entry of the nolle prosequi was ultra vires the Director. In rejecting the applicants’ argument that the Director could have proceeded with the trial of the non-scheduled offences, Dunne J observed (at 445-6), obiter dictum, that the return for trial to the Circuit Criminal Court was defective because of the absence of a direction under s. 45(2) of the Act of 1939 since that court, as a trial court, derived its jurisdiction from the return for trial. 23. Accordingly, while acknowledging that what happened was not in accordance with best practice, I am not satisfied that the failure to explicitly, rather than implicitly, communicate to the District Judge that the Director had given a direction under s. 45(2) of the Act of 1939 is fatal to the validity of the return for trial that followed.

The absence of a recital on the return for trial that there was a s. 45(2) direction 24. It is common case that the return for trial does not contain any recital to the effect that the Director had given a direction, pursuant to s. 45(2) of the Act of 1939, that the two Firearms Act offences were to be sent forward to Wexford Circuit Criminal Court rather than to the Special Criminal Court.

25. It is interesting to note the observation of Dunne J. in Ward (at 446) that, normally, the relevant direction is made known to the trial judge by means of a stamp on the return for trial. Certainly, the statutory form of return for trial prescribed under Order 24, rule 10 of the District Court Rules contains no standard form of wording (for deletion where inapplicable) in that regard. Accordingly, the relevant recital has to be interlineated or stamped on that form.

26. The question is whether the absence of the relevant recital is fatal to the validity of the return for trial.

27. I have not been referred to any authority directly on the point. The author of Walsh on Criminal Procedure (3rd edn, Round Hall, 2025) (at 48-61), cites the earlier text Ryan and Magee, The Irish Criminal Process (Mercier Press, 1983) (at p. 378) as authority for the proposition that:

‘[I]t is desirable that any order returning an accused for trial on a scheduled offence to the Central Criminal Court or Circuit Court should show on its face that the appropriate direction from the DPP has been given. If the order returning the accused for trial contains no reference to such a direction it may prove necessary at a later stage to provide oral evidence that the direction was communicated to the District Court judge in order to establish the validity of the return for trial.’

28. In contrast to that commentary, counsel for the applicant drew my attention to the following extract from the text Coonan, O’Toole and O’Toole, Criminal Procedure in the District Court (2nd edn, Round Hall, 2022) (at 7-58):

‘An order returning an accused for trial to the Special Criminal Court must show jurisdiction on its face. It would appear to follow that, where the DPP directs that a scheduled indictable offence may be dealt with before the ordinary courts, this must be recited in the body of the return for trial.’

29. The authority for the first part of that proposition is the ex tempore judgment of Kelly J in DPP v Brophy (unreported, High Court, 3 December 2001) in which, it would appear (no note or copy of the judgment can be located), the High Court quashed an order which purported to return a non-scheduled indictable offence for trial by the Special Criminal Court pursuant to the Criminal Procedure Act 1967, without reference to s. 46(2) of the Act of 1939 upon which the jurisdiction of the Special Criminal Court was actually founded in that case.

30. However, for my part, I cannot accept that the second part of that proposition follows from the first. I do not think that a direction under s. 45(2) of the Act of 1939 and an application under s. 46(2) of that Act are merely opposite sides of the same coin. Section 45(2) deals with the direction necessary to permit an indictable, scheduled offence to be returned for trial to the ordinary courts, thereby acknowledging, rather than entrenching upon, the constitutional grundnorm of the right to jury trial as an aspect of the right to trial in due course of law. In contrast, s. 46(2) of the Act of 1939 confers a power on the Director to make an application to the District Court – grounded on the certificate of the Director that the ordinary courts are, in her opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of such person on such charge – to return an indictable non-scheduled offence for trial in the Special Criminal Court, thereby lawfully removing the right of the accused person concerned to a jury trial on that charge. It is also important to note that, once the appropriate direction has been given under s. 45(2) of the Act of 1939, the appropriate order of return for trial is one made pursuant to s. 4A(1) of the Criminal Procedure Act 1967, as was done in this case.

31. Accordingly, I do not see any essential equivalence between a direction under s. 45(2), on the one hand, and an application under s. 46(2) (grounded on the necessary certificate), on the other.

32. For that reason, it seems to me that the analysis of the authors of The Irish Criminal Process is the correct one – that it is desirable, rather than necessary or essential, that an order returning an accused for trial on a scheduled offence to the Circuit Court should show on its face that the Director has given the appropriate direction, subject to the qualification that, if it does not, it may prove necessary at a later stage to provide oral evidence that the direction was communicated to the District Court judge in order to establish the validity of the return for trial.

33. Does that qualification apply in the particular circumstances of this case? Was it necessary to provide oral evidence at a later stage? The applicant accepts that he did not seek to question the validity of his return for trial once he came before Wexford Circuit Criminal Court. At that point, the order of return for trial had the benefit of a rebuttable (or ‘disputable’) presumption of regularity; State (Attorney General) v Judge Binchy [1964] IR 365. No attempt was made to displace that presumption.

34. More than that, the applicant entered a plea of guilty in Wexford Circuit Criminal Court to three of the four charges that were the subject of his return for trial, including the two scheduled Firearms Act offences. In Ward v DPP, [2011] IECCA 31, (unreported, Court of Criminal Appeal, (Finnegan, Budd and O’Keefe JJ), 31 May 2011), a fortnight after pleading guilty to a number of offences before the Circuit Criminal Court, the appellant attempted to challenge the jurisdiction of that court on the basis of an asserted defect in the return for trial. The Court of Criminal Appeal stated (per Finnegan J): ‘This court is satisfied that for the applicant to plead guilty and then seek to challenge the jurisdiction of the court on that basis was an abuse of process. By entering a plea of guilty the applicant had recognised the jurisdiction of the court and the return for trial was no longer in issue.’

35. There are several other authorities to broadly the same effect. In Gorman v Judge Mary Martin & Ors, [2005] IESC 56, (Unreported, Supreme Court, (Murray CJ, McGuinness and Kearns JJ), 29 July 2005), the State succeeded in an appeal against the grant of orders of certiorari, quashing inter alia a return for trial, on the basis that the applicant in that case had not raised the point at any stage during the criminal process and had pleaded guilty before the Circuit Court, which the Supreme Court concluded (per Kearns J) could only be seen as a form of acquiescence. In DPP v Hughes [2013] 2 IR 619, the Court of Criminal Appeal dismissed an application for enlargement of time to appeal against conviction that was made on the basis that the warrant power the exercise of which underpinned the applicant’s conviction had since been found to be unconstitutional in Damache v DPP [2012] IR 266, holding that justice did not require that the time for appeal be extended in order to permit the applicant to appeal convictions for offences of which he confessed himself guilty.

36. The principles identified in these judgments confirm that, in the particular circumstances of this case, there was no necessity to provide oral evidence that the relevant direction was communicated to the District Court judge in order to establish the validity of the return for trial at any stage after the return for trial. Thus, I cannot be satisfied that the effect of the failure of the return for trial in this case to show on its face that the Director had given the appropriate direction was to deprive the Circuit Criminal Court of jurisdiction.

37. For completeness, I should say that, even if I could be satisfied that the failure of the return for trial to show that the relevant direction had been given was an established technical defect in – rather than merely an undesirable omission from – that order, that would not render the applicant’s post-conviction detention unlawful.

38. In State (Royle) v Kelly [1974] IR 259 (at 269), Henchy J held:

‘Where, as in the present case, the prisoner has been convicted and sentenced by a court established by law under the Constitution, and the jurisdiction of that court to try the offence and impose the sentence has not been challenged, it would be necessary to show that the procedure has been so flawed by some basic defect as to make the conviction a nullity before it could be held that the detention was not in accordance with the law.’

39. In State (McDonagh) v Frawley [1978] IR 131 (‘State (McDonagh)’) (at 136), the Supreme Court held that before a convicted prisoner will be entitled to an order directing his or her release under Article 40.4 of the Constitution, the convicted prisoner must establish the existence of a fundamental breach of legal requirements, so that the detention may be said to be wanting in due process of law – it will not be enough just to establish a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded.

40. In Child and Family Agency v McG & JC [2017] 1 IR 1, O’Donnell J explained:

‘The grounds for challenging the validity of orders made has expanded exponentially since the remarks in The State (Royle) v Kelly [1974] IR 259 were made. But in most cases, Article 40.4 cannot be invoked as an alternative speedier and sometimes more costly and disruptive route to a conclusion which may require the careful analysis by way of judicial review of the validity of an order. For my part, I accept the observations of Henchy J. in The State (Aherne) v Cotter [1982] IR 188 that the High Court hearing an application under Article 40.4 does not have jurisdiction to quash orders of inferior courts or administrative bodies. That goes back to the fundamental nature of the remedy: its strength lies in part in its limitation. However, the court in an exceptional case has the capacity to direct the release of the applicant notwithstanding the existence of the order, in the same way in which in an exceptional case, post-conviction, it may proceed to direct the release of an individual notwithstanding the existence of an order convicting him or her which has not been set aside on appeal in the circumstances considered by Henchy J. Any such case however is exceptional and the breach must be so fundamental that the obligation of the administration of justice and the upholding of constitutional rights requires the court to proceed in that fashion.’

41. In Walsh v Governor of Limerick Prison, (Unreported, High Court (Laffoy J), 31 July 1999), the applicant contended that his detention was unlawful because the committal warrant of the Special Criminal Court failed to recite the basis for its jurisdiction under the Act of 1939. The respondent submitted that the defect concerned was merely technical. Laffoy J concluded:

‘…I am satisfied, on the evidence adduced by the respondent, that the applicant was convicted and sentenced by the Special Criminal Court acting within its jurisdiction and that the sentences are properly recorded in the warrant. Insofar as the warrant or the order of the Special Criminal Court is defective for failure to show jurisdiction ex facie, in my view this does not amount to “such a default of fundamental requirements that the detention may be said to be wanting in due process of law.” Therefore, I hold that the applicant is not entitled to succeed on [that ground].’

42. Applying those principles to the facts of the case at hand, I conclude that even if I could be satisfied that the failure of the return for trial to recite that the relevant direction had been given is a technical defect in that order, it would not amount to “such a default of fundamental requirements that the detention may be said to be wanting in due process of law.”

A challenge to the legality of detention after the criminal process has reached finality 43. The principal argument relied upon by the Director in seeking to uphold the lawfulness of the applicant’s detention is that there are no exceptional circumstances in this case that would entitle the applicant to challenge the lawfulness of his detention where his prosecution, conviction and appeal have been determined to the point of statutory finality.

44. On that issue, the Director relies on the decision of the Supreme Court in Brennan v Governor of Portlaoise Prison [2008] 3 IR 364 (‘Brennan’). In giving judgment for the Supreme Court in that case, Geoghegan J identified what he described as ‘a fundamental procedural objection to the Article 40 application’ (at 379). The applicants had unsuccessfully raised the point on which they sought to challenge the lawfulness of their detention before the Special Criminal Court and, subsequent to their conviction, before the Court of Criminal Appeal. They did not make any application for a certificate under s. 29 of the Courts of Justice Act 1924 to enable them to appeal to the Supreme Court. Accordingly, the decision of the Court of Criminal Appeal was final by operation of that section. In the meantime, another person charged with the same offences in the same circumstances had separately raised the same point in an application for judicial review on which he ultimately succeeded in the Supreme Court; O’Brien v Special Criminal Court [2008] 4 IR 514.

45. Against that background, Geoghegan J observed (at 381) that:

‘[N]ormally where the route of appeal rather than judicial review is pursued, the finality of the decision of the Court of Criminal Appeal will cover any potential ground of appeal including a jurisdictional point which could reasonably have been included in the appeal even if it was not.’

46. Geoghegan J quoted with approval the following passage from the text Costello, The Law of Habeas Corpus in Ireland, (Four Courts Press, 2006) (at p. 210):

‘It is implicit in the appellate scheme created by the Courts of Justice Act 1924 that the legislative intention was that there be merely a single appeal to the Court of Criminal Appeal….

Further, under s. 29 of the Courts of Justice Act 1924, the determination of the Court of Appeal is expressly declared to be final. A conviction may only be impeached on new grounds in the circumstances described in s. 2 of the Criminal Procedure Act 1993. The principle of finality under s. 29 would be subverted if a complaint could, notwithstanding a prior determination by the Court of Criminal Appeal, be submitted under Article 40.4.2°.’

47. Geoghegan J endorsed the foregoing statement of the law (at 382), subject to the proviso that there may be very exceptional cases where some fundamental jurisdictional defect is established in an Article 40 application which through nobody’s fault had not been raised or considered in the appeal processes, before adding (at 384) that nothing he said was in any way intended to question the well-established jurisprudence, clearly expressed in State (McDonagh), that in certain exceptional circumstances, but only in exceptional circumstances, will an Article 40.4.2° application lie in relation to post-conviction detention. I pause here to confirm that I can identify no exceptional circumstance in this case.

48. In addressing this procedural obstacle, counsel for the applicant submits that the decision in Brennan is no longer good law, having been swept away – although not directly overruled – by the later decisions of the Supreme Court in Caffrey v Governor of Portlaoise Prison [2012] 1 IR 637 (‘Caffrey’); O’Farrell v Governor of Portlaoise Prison [2016] 3 IR 619 (‘O’Farrell’); and Ryan v Governor of Mountjoy Prison [2021] 1 IR 590 (‘Ryan’).

49. Caffrey was an appeal against an unsuccessful challenge to the lawfulness of the appellant’s detention under a warrant issued by the High Court pursuant to s. 7 of the Transfer of Sentenced Persons Act 1995 (‘the Act of 1995’). In the High Court, that challenge had been determined against the appellant on the merits, although the respondent had failed on a preliminary objection. On the appeal, the respondent served a notice to vary to reargue the same preliminary objection – that the matters raised by the appellant were more properly matters for judicial review and not the Article 40.4.2° procedure and that the appellant had waived, or was estopped from raising, the claims he sought to advance. In that regard, it should be noted that one of the conditions precedent to the Minister for Justice’s consent to the transfer of a sentenced person into the State, under s. 6(3)(d) of the Act of 1995, is that the sentenced person consents in writing to the transfer. In advancing that objection, one of the propositions relied upon by the respondent was that the High Court had erred ‘in failing to apply at all or properly the principles laid down by [the Supreme Court] in [Brennan].’

50. In dealing with the judicial review and waiver or estoppel arguments, Denham C.J. stated as follows (at 652-3):

‘As to the notice to vary, the High Court Judge stated at pp. 8 to 9:-

“[9] What I do not believe can ever happen is that a prisoner, by his consent incidental to the process whereby he is imprisoned, or by failing to take a point as to jurisdiction at the appropriate time, or by apparently acquiescing in the form of his detention, can render what is not in law a valid form of imprisonment into a lawful detention. If a prisoner cannot be detained in a court in accordance with law, then incidental aspects of consent, acquiescence or delay cannot make lawful what is unlawful. Nor would I believe that the court has any discretion akin to that exercised in judicial review proceedings to refuse to make an order in habeas corpus proceedings. There is only one issue in this kind of inquiry: is the prisoner lawfully detained or not? That admits of only one answer where there is no legal foundation to a sentence of imprisonment.”

I would affirm this approach by the High Court Judge. The issue for the court was whether the applicant was lawfully detained or not. The applicant could not be lawfully detained on the basis of his consent or acquiescence; it is a question of law. However, I also agree that the issues were more properly matters for a judicial review procedure.’

51. The applicant in this case argues that the rejection in that case of the respondent’s argument that the lawfulness of the appellant’s detention was subject to the principles laid down in Brennan implies that in Caffrey the Supreme Court was departing from – if not directly overruling – Brennan, albeit sub silentio.

52. In considering that submission, which seems to me to be fundamentally misconceived, it is helpful to return to the preceding paragraph of the underlying decision of Charleton J in the High Court in Caffrey v The Governor of Portlaoise Prison [2010] IEHC 213, (Unreported, High Court, 20 May 2010):

‘[8] The idea of consent is central to the transfer scheme whereby prisoners are brought from one State to another to serve out their sentence. What prisoners are consenting to, in that regard, is not that their detention should continue beyond the appropriate time, or that it should continue within circumstances which infringe the guarantee of liberty contained in Article 40.4.1° of the Constitution but, rather, that they should be transferred from one jurisdiction to another. Acquiescence to court jurisdiction can occur in respect of a court that actually has jurisdiction in law where a prisoner understands that there may be some claim that might be made concerning the manner in which he is brought before a court but chooses to allow a trial to take place which results in a sentence of imprisonment. That accords with the power conferred by law on a court. Examples of this kind of acquiescence might occur where statute provides that the jurisdiction of a court or a tribunal must be invoked within a particular time, or promptly, and the prisoner knowing of some such preliminary defect chooses not to raise an objection at an appropriate time; [Brennan] A situation can also occur where a statutory mechanism exists, and is invoked, whereby incidental procedural matters to the detention of a patient in a mental hospital may be corrected; see W.Q. v. Mental Health Commission [2007] 3 IR 755. In the latter case a period of unlawful detention can later be rendered lawful through the intervention of the Mental Health Tribunal on which that corrective power is specifically conferred by law. The statutory mechanism for the correction of the status of detention thereby confers jurisdiction in law to detain the patient. A court on which jurisdiction has been properly conferred by law, but which may be more properly constituted where a selection process for the tribunal of fact is used and accords with the Constitution, nonetheless retains its jurisdiction. An election not to challenge that tribunal may mean that a point that is otherwise valid is passed because the objection was not taken at the appropriate time; see The State (Byrne) v. Frawley [1978] IR 326. All of these refer to matters incidental to the jurisdiction properly conferred by law. There is no case which decides that a court which has no jurisdiction in law to order imprisonment somehow is invested with appropriate power because an accused before it did not raise an objection.’ 53. Thus, the approach of the High Court, affirmed by the Supreme Court, was to draw a clear distinction between acquiescence to the properly conferred jurisdiction of a court, despite any preliminary defect in the exercise of that jurisdiction that could have been, but was not, raised at the appropriate time, on the one hand, and acquiescence to the jurisdiction of a court that is not conferred with jurisdiction, on the other. Acquiescence in the former sense, after the criminal process has reached statutory finality, can support a fundamental procedural objection to an Article 40.4.2° application, save in exceptional circumstances (which do not arise here) on the authority of Brennan. On the authority of Caffrey, acquiescence in the latter sense cannot. It follows that there is no fundamental inconsistency between those decisions – on the contrary, they can be readily reconciled. In Caffrey, Charleton J was acknowledging the binding force of the decision in Brennan, in the appropriate circumstances, and the Supreme Court was affirming that approach.

54. In O’Farrell, another case concerning the operation of the Transfer of Sentenced Persons Act 1995, as amended, McMenamin J noted (at 737) that no argument had been made that Caffrey was incorrectly decided, so that a plea of waiver, consent or estoppel could not assist the respondent in objecting to an Article 40.4.2° inquiry into the lawfulness of the applicants’ detention in that case. It is perhaps interesting to note that, in a joint dissent, O’Donnell and Clarke JJ acknowledged (at 647-8) that Caffrey represents a recent decision on the same statutory scheme, so that the legal validity of the applicants’ detention had to be addressed without regard to the applicants’ conduct in seeking a transfer, but sought to reserve for another occasion the question of whether, and in what circumstances, if any, a party might become disentitled to advance arguments as to the invalidity of his detention.

55. In Ryan, the issue before the Supreme Court was whether it is permissible to dismiss an application for an Article 40.4.2° inquiry on the ground that the application constitutes an abuse of process. The detention in that case had been ordered by the District Court for contempt of court. The abuse of process at issue comprised a number of false and inaccurate averments in affidavits sworn to ground the application for an Article 40.4.2° inquiry. In that context, Dunne J observed (at 610) that it is clear from Caffrey that the issue of waiver/estoppel will not preclude the court from giving a decision on whether or not someone’s detention is lawful. That is undoubtedly true, as far as it goes, but it does not suggest, much less establish, that Brennan was wrongly decided. The Supreme Court concluded in Ryan (at 617) that if the unlawfulness of a person’s detention is established, that person must be released from detention notwithstanding any issue that may arise about the conduct of that person in the initiation or pursuit of an Article 40.4.2° inquiry. That conclusion does not impinge upon, much less reverse, the proposition that, absent exceptional circumstances, an applicant cannot successfully challenge the lawfulness of his detention where his prosecution, conviction and appeal have already been determined to the point of statutory finality.

56. I have already indicated that I am unable to identify any exceptional circumstances in this case. Hence, I am satisfied that the Director’s preliminary objection on this basis is well- founded and that an Article 40.4.2° inquiry does not lie on the established facts. Conclusion 57. For each of the reasons I have given, I conclude that the applicant is being detained in accordance with law.

Appearances Colman Fitzgerald S.C. with Greg Murphy B.L. for the applicant, instructed by Pauric Hyland of Pauric Hyland, Solicitors. John Gallagher B.L. for the Director of Public Prosecutions, instructed by the Chief Prosecution Solicitor.