Supreme Court allows appeal holding that a judicial review stay suspends but does not terminate criminal proceedings, permitting remand orders.

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 day of April, 2014, by Denham C.J.

1. This is an appeal by the Governor of St. Patrick’s Institution, the respondent/appellant, referred to as “the appellant”, from the

judgment of the High Court (Hogan J.) delivered on the 19th October, 2012, which declared that Michael Farrell, (also known as

Regan), referred to as “the respondent”, was entitled to have been released on the 4th July, 2012.

2. At issue is whether the District Court had jurisdiction to remand the respondent in custody on the 28th June until the 5th July,

notwithstanding a stay granted in the High Court (Birmingham J.) in judicial review proceedings. It was submitted on behalf of the

appellant that the issue is relevant to many prosecutions, which are the subject of judicial review proceedings.

3. There is a preliminary issue as to whether the appeal is moot.

Background

4. The respondent was charged with offences before Trim District Court, two Road Traffic Act offences alleged, being dangerous

driving and failing to keep a vehicle at the scene of an accident, and one alleged offence contrary to the Criminal Justice (Theft and

Fraud Offences) Act, being making off without payment.

5. On the 1st May, 2012, the respondent was granted bail by Trim District Court, with bail fixed in the sum of €300 on his own bond

and a further independent surety of €300. He was remanded in custody with consent to bail until the 3rd May, 2012. He was

remanded on a number of further occasions, with consent to bail, to the 28th June, 2012.

6. On the 28th June the respondent was produced in custody before the District Court in Trim. The stay order which had been made

by the High Court (Birmingham J.) on the 25th June was before the District Court. Counsel for the respondent submitted that the

District Court had no jurisdiction to make an order remanding the respondent in custody on the charges as the proceedings had been

stayed.

7. Trim District Court did not accept counsel’s submission, and the respondent was remanded in custody, with consent to bail, to

Cloverhill District Court on the 5th July, 2012.

8. When the matter came before Cloverhill District Court on the 5th July, 2012, no further order was made, and the respondent was

released.

9. On the 4th July, 2012, there was an application to the High Court for an inquiry pursuant to Article 40.4.2° of the Constitution, in

which it was submitted that the respondent was entitled to be released on that date.

10. The issue arises in circumstances where the respondent was entitled to be released on the 4th July, 2012, unless the District

Court order made on the 28th June remanding him in custody until the 5th July, 2012 is valid.

Application for an Inquiry pursuant to Article 40.4.2

11. The application for an inquiry pursuant to Article 40.4.2° of the Constitution was grounded on the affidavit of John Quinn,

Solicitor, sworn on the 4th July 2012.

12. The facts deposed to by John Quinn included that on the 27th April, 2012, the respondent was convicted of an offence contrary

to s. 15 of the Misuse of Drugs Act, 1977, as amended, and was sentenced to three months detention. With remission the respondent

would be released from this detention on the 4th July, 2012.

13. However, there was also the warrant from Trim District Court remanding the respondent in custody until the 5th July, 2012.

14. Mr. Quinn referred to the charges set out earlier in this judgment which were pending in the District Court, reference was made to

the several remands in custody with consent to bail leading up to the order of the 21st June, 2012, when the respondent was

remanded in custody with consent to bail to the 28th June, 2012.

15. Certain legal issues arose in relation to the prosecution before Trim District Court. Leave was sought to apply for judicial review of

matters including a refusal of legal aid, and seeking declarations in respect of the Criminal Justice (Legal Aid) Act 1962, before the

High Court (Birmingham J.) on the 18th June, 2012.

16. On the 18th June, 2012, in the judicial review proceedings, the High Court (Birmingham J.) granted leave to apply for judicial

review.

17. On the 25th June, 2012, a stay was sought from the High Court (Birmingham J.), in the same proceedings and it was granted.

18. The order of the High Court of the 25th June, 2012, provided, having referred to the earlier order of the 18th June, 2012, granting

leave to apply for judicial review, that:-

“It is ordered that the proceedings currently pending before Trim District Court on foot of charge sheet numbers

12720972, 12720923 and 12720931 be hereby stayed pending the determination of this application for Judicial Review or

until further Order in the meantime or until such time as this stay shall have lapsed by reason of the [respondent’s] failure

to serve an originating Notice of Motion herein within the proper time and that the said Order and this Order be read as

one.”

19. The inquiry pursuant to Article 40.4.2° came on for hearing in the High Court on the 15th October, 2012.

The High Court

20. The High Court (Hogan J.) delivered a judgment in this matter on the 19th October, 2012.

21. On the issue as to whether the matter was moot, the High Court held:-

“This is essentially why the present proceedings should be resolved, even if this is by way of exception to the mootness

doctrine. It would be totally unrealistic to expect that the legal issues presented by this application could have actually

been resolved within the period of July 4th/July 5th. But precisely because of the narrowness of that period and the

viability of the legal system to come to a fair adjudication within that short twenty four hour period, the legality of [the

respondent’s] detention during those hours would otherwise have escaped - or, at least, might escape – effective judicial

oversight and review. In these special circumstances, we can now proceed to consider the merits of the application.”

22. The High Court described the critical question as: “what was the effect of the order made by Birmingham J. granting a stay?”

23. On the substantive issue the High Court held:-

“17. What, then, was the nature and effect of the stay? It was in truth a form of public law injunction restraining the

District Court from taking any further steps in the matter. There are, of course, certain subtle differences between the

grant of a stay and an injunction both in terms of the criteria governing the grant of these reliefs, their respective scope

of operation and the addressees of such relief. As it happens, many of these matters were explored by Clarke J. in his

comprehensive judgment for the Supreme Court on this issue in Okanunde v. Minister for Justice and Equality [2012] IESC

49. 18. But whatever the differences between a stay and injunction for other purposes, these differences have no bearing on

the present case. What matters here is the effect of the stay and the general coercive effect of such an order cannot be

in doubt. The order stayed the criminal proceedings then pending against the accused in the District Court. This means

that the District Court was not entitled to take any further steps adverse to the applicant for so long as that order was in

force. Of course, the existence of the stay did not mean that the District Court would not have been entitled to make no

order or even to adjourn the criminal proceedings to a named date. A step of that kind is essentially neutral in nature: it is

not inconsistent with a stay order to maintain the status quo pending further order from the High Court.

19. For so long as the stay was in force in the form in which it was, the District Court was not, however, entitled to make

the order which was actually made, i.e., an order remanding the applicant in custody, even if there was consent to bail

and even if the applicant had been previously so remanded in custody. A remand order of that kind was positively

inconsistent with the nature of the stay which had been granted by Birmingham J., even if- as I am absolutely certain

was the case- Judge Brennan acted perfectly bona fide and honourably in a difficult situation. The fact remains, however,

that he had no jurisdiction to make the order which he did having regard to the terms of the stay.

Conclusions

20. In these circumstances, it is plain that the order of the District Court remanding the applicant in custody until 5th July

was invalid. It follows in turn that there was no proper legal basis for detaining the applicant on 4th July, 2012. While the

Court's task in an Article 40.4.2 inquiry is confined to determining the legality of the detention, in these special

circumstances I will simply declare that the applicant was entitled to have been released from custody on 4th July, 2012.”

Appeal

24. The appellant filed six grounds of appeal, submitting that the High Court erred in law or in fact or on a mixed question of law and

fact as follows:-

“(i) Excluding from evidence the underlying Judicial Review proceedings in which the stay of the 25th day of June,

2012, was granted on the grounds that the terms of the stay sought as disclosed by the reliefs and grounds in the

said proceedings was irrelevant.

(ii) Having identified that the purpose of a stay in Judicial Review proceedings was to maintain as far as practicable

the status quo, the learned Trial Judge erred in law in holding that the order of the District Court of the 28th of

June, 2012, failed to do so.

(iii) In holding that the effect of the stay granted by order of the 25th day of June, 2012, was to preclude the

District Court from making an order further remanding the Respondent in custody, notwithstanding that there was

consent to bail and/or that the Respondent had so previously been remanded in custody.

(iv) In holding that the District Court Order of the 28th of June, 2012, was not neutral in nature and/or was

inconsistent with maintaining the status quo in relation to the parties in circumstances where there was no

application seeking to vary the status of the Applicant/Respondent before the High Court on the 25th day of June,

2012 or on any other date or otherwise.

(v) In holding that an order remanding the Respondent in criminal

proceedings on the same terms and conditions as had previously existed, where such conditions did not form part of

any application for judicial review, was inconsistent with the terms of the stay and/or failed to maintain the status

quo and/or was an adverse step in the proceedings.

(vi) In holding that the detention of the Respondent had no legal basis where the District Court had remanded the

Respondent in custody with consent to bail until the 5th day of July, 2012.”

Submissions on the Issue of Mootness

25. Both parties provided written submissions, including supplemental submissions in relation to the issue of mootness. In addition, the

Court heard oral submissions. I shall consider first the preliminary issue as to whether the appeal is moot.

Moot?

26. On behalf of the appellant it was submitted that the Court has a discretion as to whether to hear an appeal from an Article

40.4.2° inquiry when the applicant has been released. It was submitted that where the matter is one of real concern to the State,

the Court may exercise its discretion in favour of determining the matter. Reference was made to the ex tempore judgment handed

down in Malony v. Member in Charge Terenure Garda Station [Unreported, Supreme Court, 18th May, 2004] and Dunne v. The

Governor of Cloverhill Prison [2009] IESC 43.

27. The appellant submitted that the Court should exercise its discretion to hear the appeal on the following grounds:-

(i) There is no cross appeal by the respondent.

(ii) Should the appellant succeed the respondent can be re-charged. The effect of the judgment and order of the

High Court would appear to be that any attempt to re-charge the respondent would be unlawful while the judicial

review is pending. There is therefore a potentially live issue between the parties as to whether or not the

respondent can be re-charged.

(iii) There are recognised exceptions to the mootness rule which should be applied in this case.

(iv) The Court should hear the appeal on the grounds that to do otherwise would be “declining to exercise its proper

appellate jurisdiction” See Re Zwann [1981] I.R. 395, 401 per O'Higgins C.J.

(v) The effect of the order and judgment of the High Court is to fundamentally alter the status of the accused and

to cast into abeyance the underlying criminal proceedings in circumstances where the appellant has not been heard

in relation to the application for a stay.

(vi) The issues raised are of real concern to the appellant. They potentially affect a significant number of cases in

relation not merely to the refusal of legal aid, but also to the injunction of prosecutions on grounds of prejudice

and/or delay where the granting of a general ‘stay’ has the effect of precluding the continued remanding of an

accused in custody in the District or Circuit Court in circumstances where such continuing remands do not appear

to be the gravamen of an applicant’s case or matters which the judge granting leave was asked to consider. It was

stated that remand prisoners are imprisoned pending trial only if they are likely to abscond, interfere with witnesses

or commit and serious offence and consequently any change in their status on an effectively ex parte basis is of

real concern to the appellant.

28. On behalf of the respondent it was submitted that these proceedings are moot and that it was neither practical nor desirable for

the Court to hear the appeal where the detention has long since come to an end.

29. Counsel for the respondent referred to Dunne v. Governor of Cloverhill Prison [2009] IESC 43, which was an appeal against an

order of Peart J. directing the release of the applicant following his arrest and recharge immediately after being released by Edwards J.

in the first set of proceedings. In that case the appeal was dismissed, and it was stated:-

“The applicant is no longer in custody on foot of the new charge. That charge is inoperative. In relation to the new

charge there is no live issue remaining between the parties. In the circumstances the issue of the new charge is not

justiciable and scarce judicial resources should not be used to advance an academic analysis.”

That was a decision of a five judge panel of this Court and the respondent submitted that it should be followed in this case.

31. It was submitted on behalf of the respondent:-

(i) The fact that no cross appeal was brought in respect of the findings of the learned trial judge does not alter the

reality that the issue is moot and that this Honourable Court must exercise its own discretion whether to entertain

the appeal or not.

(ii) The ruling on mootness in the High Court did not, by definition, address the question whether the Supreme Court

should entertain an appeal which has long since become moot, particularly because of the scarcity of judicial

resources and the realities presented by over burdened lists at the appellate tier.

(iii) The appellant submitted that the respondent could have taken judicial review proceedings to challenge the

order remanding him in custody. However, the Constitution provides a remedy which the respondent availed of. Any

speculation as to what may have happened, had he sought judicial review of his incarceration, is irrelevant to the

case before this Honourable Court.

(iv) It was argued that the appellant had submitted that a failure to entertain this appeal would be to “decline to

exercise its proper appellate function”. In particular, the appellant submitted that the respondent, by seeking

judicial review in which leave and a stay were granted on an ex parte basis, has apparently deprived the State of

an opportunity to be heard. It was argued that this ignored the reality that the appellant could have sought to vary

or set aside the stay, a procedure provided for under the Rules of the Superior Courts. It was submitted that it is

telling that this course of action was not followed in this case.

(v) The stay granted in this case was concerned with the “criminal proceedings”, not the criminal trial. If the

appellant had general concerns in relation to the form of a stay granted in ex parte proceedings, it is open to the

appellant to challenge that form of stay. This case cannot be separated from the specific and special language of

the stay sought and granted by Birmingham J. An infinite variety of qualifications can be placed upon a stay so as

to determine its ambit.

(vi) The issues raised in this case are not of such general application as to warrant this Honourable Court departing

from its policy of declining to hear appeals that are plainly moot.

Decision

33. Clearly the appeal is moot, the respondent has been released. The respondent brought an application for an inquiry under Article

40.4.2° of the Constitution. The relief which may be granted on such an inquiry is to release an applicant. The High Court granted the

relief and released the applicant. Consequently, the appeal is moot.

Discretion

34. However, the Court has a discretion which it may exercise as to whether or not it will hear and determine a moot appeal. This has

been considered recently by the Court in W v. Health Service Executive [2014] IESC 8, and in Lofinmakin (a minor) & Ors v. Minister

for Justice, Equality and Law Reform [2013] IESC 49.

35. Applying the law well established by cases of this Court, including those referenced above and G v. Collins [2005] 1 I.L.R.M. 1,

Irwin v. Deasy [2011] 2 I.R. 752 O’Brien v. PIAB (No. 2) [2007] 1 I.R. 328, Okunade v. The Minister for Justice, Equality and Law

Reform & Ors [2013] 1 I.L.R.M. 1, I would hear the appeal.

36. The reasons why I would hear this moot appeal include the following:-

(i) the decision to grant a stay was made on an ex parte application, and the appellant had no opportunity to address the

issue, or terms, of a stay;

(ii) the decision has an effect on criminal proceedings which are of real and reasonable concern to the appellant;

(iii) such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the

appeal;

(iv) the decision potentially affects many criminal cases in the District Court;

(v) the decision has a systemic relevance to cases before the courts, where an application for judicial review has been

granted.

A Stay

37. The substantive issue is the nature and effect of a stay in the circumstances.

Submissions on behalf of the Appellant

38. On this substantive issue written and oral submissions were made on behalf of the appellant and the respondent.

39. On behalf of the appellant it was submitted, inter alia, that the purpose of a stay in judicial review proceedings is to preserve the

status quo in relation to the decision under challenge. It was submitted that the reliefs sought in the judicial review were to restrain

the prosecution of the respondent unless he was afforded legal representation to enable him defend the criminal charges.

40. It was submitted on behalf of the appellant that the failure of the learned High Court judge to have regard to the meaning and

effect of the stay granted by the High Court in the context of the judicial review proceedings was wrong in law and had the effect of

excluding matters relevant to the effect of the stay granted by Birmingham J.

41. Further, it was submitted that the relief sought was directed towards the trial of the respondent, rather than any remand in the

District Court.

42. It was submitted that the learned High Court judge erred in finding that the maintenance of the respondent’s status by the

District Court, by remanding him on the same terms and conditions, was not preserving the status quo.

43. It was submitted that the learned High Court judge erred in holding that the effect of the stay was to preclude the District Court

from making an order remanding the respondent in custody, notwithstanding that there was consent to bail and that the respondent

had previously been remanded in custody. It was submitted that where a person has previously been remanded by a court of trial, the

terms and conditions in relation to bail or custodial status of the person so remanded remain valid unless that order is impugned, and

is the subject of the reliefs sought.

44. It was submitted that there was no evidence that Birmingham J. had ever been addressed, or asked to consider the issue of bail

in relation to the stay. It was submitted that the consequence of the order of Hogan J. is that two distinct positions on a stay

application now arise depending on whether a person is in custody or not:-

(i) in the event of a stay being granted a person on bail has the status quo preserved in that he is further

remanded in the same terms and conditions as previously by the District Court;

(ii) while a person in custody on foot of a valid order is now no longer subject to such conditions.

It was submitted that this is an untenable situation.

45. It was submitted also that the High Court erred in finding that an order remanding the respondent on the same terms and

conditions was an adverse step in the proceedings. A further remand on the same terms and conditions was not an adverse step, but

rather preserved the situation.

Submissions on behalf of the Respondent

46. It was submitted on behalf of the respondent that the issue which arose before Hogan J. was not the merits, rights or wrongs, of

how the order of Birmingham J. staying the proceedings came into existence, but rather the issue was what effect did the order of

Birmingham J. have on the proceedings in Trim District Court.

47. It was submitted that the order of Birmingham J. stayed the proceedings, that it was in force on the 25th June, 2012, that it

bound the District Court, and that Hogan J. could not look behind it or re-evaluate its merits.

48. It was submitted that if a respondent in judicial review proceedings takes issue with the form of a stay, they can challenge the

grant of the stay.

49. Reference was made to McDonnell v. Brady [2001] 3 I.R. 588 , where the respondents challenged a stay granted in judicial review

proceedings. Keane C.J. stated obiter, that:-

“There is no reason in logic why the applicant, where the grant of a stay is subsequently challenged, should not be under

an onus to satisfy the Court that it is an appropriate case in which to grant such a stay.”

It was pointed out that no application was made to the High Court seeking to vary the stay order.

50. It was submitted that owing to the strict time limits established in law, when the respondent was produced in Trim District Court

on the 28th June, 2012, he was not a person who was remanded in custody. The remand warrant requiring his production in Trim

District Court on the 28th June, 2012, expired that day. He could only be further remanded in custody by a new order of the District

Court. A new order would have to be made with reference to all the circumstances.

51. It was submitted that remanding a person in custody requires the invocation of the Court’s jurisdiction and as such a step in the

proceedings which is prohibited by the order staying the proceedings.

52. It was submitted that incarcerating a person in pre-trial custody is not neutral, it is not maintaining the status quo.

53. It was submitted that when a Court grants leave to seek judicial review, a stay may be requested by an applicant. Order 84, rule

20 (8) (b) of the Rules of the Superior Courts, as amended by S.I. no. 691 of 2011: Rules of the Superior Courts (Judicial Review)

2011, sets out that where either certiorari or prohibition is sought then the proceedings may be stayed, by order, until the

determination of the application for judicial review, and that without any further clarification a stay operates as a complete

suspension of the proceedings.

54. Further, that any order invoking the jurisdiction of a Court is a step in the proceedings. It was submitted that the order in Trim

District Court on the 28th June, 2012, was a step in the proceedings. Thus, in this case, the order of Birmingham J. stayed the

proceedings, and the order of Trim District Court contravened that order.

Decision

55. Order 84 r 20 (8) (b) of the Rules of the Superior Courts, as inserted by the Rules of the Superior Courts (Judicial Review) 2011,

S.I. 691 of 2011, provides that when the High Court grants leave to apply for judicial review the Court may:-

“… (b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or

decision to which the application relates until the determination of the application for judicial review or until the Court

otherwise orders.”

[emphasis added]

Key words are “staying the proceedings”.

56. On the 18th June, 2012, the High Court (Birmingham J.) granted leave to apply by way of application for judicial review for the

reliefs sought in paragraph (d) in the statement of grounds.

57. The reliefs sought included inter alia:-

(i) An order of prohibition … restraining the DPP from prosecuting the respondent on criminal charges on foot of

charge sheet numbers 12720972, 12720923, and 12720931 currently pending before Trim District Court, unless and

until he is afforded legal aid, to include solicitor and counsel, together with a suitably appointed mentor to assist

him at trial.

(ii) An order of certiorari … quashing the decision of Judge Mahon refusing the respondent legal aid on the 7th June,

2012.

(iii) An order of certiorari … quashing the decision of Judge McMahon refusing to assign the [respondent] a mentor

on the 7th June, 2012, and to provide for same as part of a legal aid certificate.

58. The High Court made a further order on the 25th June, 2012, granting a stay. The terms of the order have been set out

previously in this judgment. The stay order was specific. It was stated that the proceedings currently pending before Trim District

Court on foot of the identified charge sheet numbers “be hereby stayed pending the determination of this application for Judicial

Review.”

59. Thus, the proceedings stayed in this case are specifically identified, and the issue then arises as to the effect on the proceedings

of the stay order.

60. Black’s Law Dictionary, Ninth Edition, p. 1548, defines a stay as:-

“1. The postponement or halting of a proceeding, judgment or the like.

2. An order to suspend all or part of a judicial proceeding or a judgment arising from that proceeding.”

Murdoch’s Dictionary of Irish Law, Fifth Edition, p. 1157, defines a stay of proceedings as:-

“The suspension of proceedings by a court eg (a) where the proceedings are vexatious or frivolous, (b) where there is a

risk of an unfair trial due to prejudicial pre-trial publicity, or (c) where legal proceedings are instituted contrary to an

arbitration agreement; or (d) where no reasonable cause of action is shown; or (e) on acceptance of a lodgement ; or (f)

where a preliminary issue of law is to be decided.”

Jowitt’s Dictionary of English Law, Third Edition, p. 2170, defines a stay as:-

“A stay in a claim is a suspension of the claim or part of the proceedings as the court directs. The term is widely used in a

number of contexts. […]”

61. It is clear that a stay order is not an order terminating proceedings. It is an order staying, postponing, suspending the

proceedings. It is an order maintaining the status quo. Thus, the proceedings being stayed, in this case the proceedings in the

District Court, are to be maintained in a holding pattern, the status quo, until the termination of the application for judicial review.

62. It is clear, therefore, that a stay does not have the effect of terminating proceedings. Rather a stay leaves the proceedings in

being but prevents the proceedings from progressing in any significant way. To the extent that it might be suggested that it was

appropriate that some progress might be made in the proceedings, notwithstanding a stay, then that is a matter to be addressed to

the judge granting the stay. An application can be made to that judge to make the stay subject to terms which would permit

whatever progress might be considered desirable. In the absence of such terms, a stay will prevent the proceedings from significantly

progressing. That does not, however, mean that any orders necessary to allow the proceedings to continue in being, albeit in a

“holding pattern”, cannot be made.

Thus the real question is as to whether any order sought to be made is one which is consistent with or contrary to the fact that the

proceedings are stayed. Orders which are a necessary part of keeping the proceedings in being are entirely consistent with a stay for

they do not progress the proceedings in any material way but simply allow the proceedings to continue in their holding pattern. On

the other hand different types of orders which would have the effect of materially progressing the proceedings are contrary to a stay

and cannot be made in the absence of a specific provision in the stay order qualifying the terms of the stay in such a way as to

permit orders of the type in question to be made.

63. However, the granting of leave to apply for judicial review, and a stay pending the determination of the application for review, do

not terminate the underlying proceedings the subject of the judicial review. The underlying proceedings are suspended pending the

review.

64. Any other interpretation would have the effect that, on an ex parte application for leave to apply for judicial review where the

DPP was not on notice or a party to the application, the prosecution process would be effectively terminated.

65. Consequently, the granting of a stay by the High Court on an application for judicial review postpones or suspends the

proceedings relating to the criminal trial, the subject of an application for Judicial Review, but it does not terminate the proceedings,

or mean that a District Court Judge could not continue to make orders while the proceedings are suspended, such as to remand an

accused in the circumstances, provided that any such orders are required to maintain the proceedings in being and are not contrary

to the stay. Thus, the District Court continued to have jurisdiction to make such an order, pending the determination of the

application for Judicial Review.

66. Consequently, I would allow the appeal.