Supreme Court allows appeal dismissing habeas corpus claim regarding prisoner sentence remission entitlement.

THE SUPREME COURT

Appeal No. 315/14

Denham C.J.

Hardiman J.

MacMenamin J.

In the matter of Article 40.4.2 of the Constitution

Between/

Edward Ryan

Applicant/Respondent

And

Governor of Midlands prison

Respondent/Appellant

Judgment of the Court (ex tempore) delivered on the 22nd day of August , 2014, by Denham C.J.

1. This is an appeal by the Governor of Midlands Prison, the respondent/appellant, referred to as “the appellant”, from the judgment

and order of the High Court (Barrett J.), which were delivered and made respectively on the 2nd July, 2014.

2. Edward Ryan, the applicant/respondent, is referred to as “the respondent”.

3. On the 2nd July, 2014, the High Court ordered that the respondent be released from detention forthwith, and that the appellant do

pay the costs of the respondent, to be taxed in default of agreement.

4. The issue which came before the High Court was whether the respondent, a prisoner, continued to be detained lawfully by the

State.

5. The respondent was sentenced on the 30th July, 2010, by the Circuit Criminal Court, to two concurrent sentences of six years

imprisonment, to run from the 26th May, 2010. He was convicted of two serious offences, of being in possession of a high powered

pistol and 15 rounds of ammunition, in suspicious circumstances, contrary to s. 27 (a) of the Firearms Act 1964, as amended.

6. The return made by the appellant certified the grounds for the detention of the respondent as being the warrant of the 30th July,

2010, of the Circuit Criminal Court.

7. The respondent’s release date, based on one quarter remission, is the 24th November, 2014.

8. By a letter dated the 3rd December, 2013, the respondent’s solicitor applied for the respondent to be granted one third remission

under rule 59(2) of the Prison Rules, 2007. Under such remission his release date would be approximately the 26th May, 2014.

9. Both the approved and unapproved written judgments of the High Court have been considered by the Court, as have the written

submissions filed on behalf of the parties.

10. At the hearing of this appeal the Court asked counsel for the parties to make oral submissions as to the appropriateness of the

remedy of Article 40.4.2 to the application and position of the respondent.

Decision

11. As the respondent was a detained person he is entitled to apply for an enquiry under Article 40. However, the High Court had

received certification from the appellant exhibiting a valid warrant for detention and that order was sufficient to establish the validity

of the detention.

12. The respondent then collaterally attacked his continued detention by urging that the Minister’s decision of the 16th April, 2014,

was procedurally flawed. The question arises as to whether this attack is within Article 40.

13. The Court follows and applies the statement of law given in FX v Clinical Director of the Central Mental Hospital [2014] IESC 01,

where it was stated at paragraphs 65 and 66:-

“65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach

is to seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an

application for judicial review may be the appropriate route to take. In such circumstances, where an order of the court

does not show any invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not

the appropriate approach.

66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless

there has been some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court,

with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a

fundamental denial of justice, or a fundamental flaw, such as arose in The State (O.) v. O’Brien [1973] 1 I.R. 50, where a

juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.”

14. Most recently, in Roche (also known as Dumbrell) v Governor of Cloverhill Prison [2014] IESC 53, Charleton J. pointed out , and

this Court would endorse:-

“ 21. There are many instances where, within jurisdiction, a court may fall into an error of interpretation or base its

decision on a mistaken view of the law. This does not in consequence remove jurisdiction. There are legal structures in

place to deal with such commonplace situations and these fall outside the obligation of the High Court to enquire into and

to declare that a detained person is either lawfully detained or not”. [Emphasis added]

15. The proposition that not every defect or illegality attached to detention will invalidate that detention has long been established.

16. This is not a novel exposition of the law. In McDonagh v Frawley [1978] IR 131 at 136 it was stated:-

“The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty save ‘in

accordance with law’ does not mean that a convicted person must be released on habeas corpus merely because some

defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental

requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore,

it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has

been inadvertently exceeded.”

17. Also, in The State (Royle) v Kelly [1974] IR 259, Henchy J. stated at p 269:-

“The mandatory provision in Article 40, s. 4, sub-s. 2, of the Constitution that the High Court must release a person

complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of

the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this

context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the

test is to ensure that the detainee must be released if—but only if— the detention is wanting in the fundamental legal

attributes which under the Constitution should attach to the detention.”

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.

19. This is not a case such as Cirpaci v Governor of Mountjoy Prison [2014] IEHC 76, where there was a complete absence of

jurisdiction in the District Court where he had pleaded guilty and not been informed of his entitlement under Article 38 to a trial by

jury. Nor is it such a case as State (O) v O’Brien [1973] IR 50, where a person underage was sentenced to a term of imprisonment in

circumstances where that jurisdiction was not available in the Central Criminal Court. Nor is it similar to Sweeney v Governor of

Loughan House Open Centre [2014] IESC 42.

20. In the cases cited above there was an absence of jurisdiction.

21. Counsel for the respondent placed reliance on O’Brien v Governor of Limerick Prison [1997] 2 ILRM 349. However, the Court

considers that the essence of O’Brien is that the judge could not impose a sentence without statutory remission and that therefore

the sentence imposed and attacked was without jurisdiction. As was stated in O’Brien, at p 356:-

“In the opinion of this Court such a sentence cannot be reconciled with the Act and with the rules and should not

therefore be imposed.”

Also, in that case, it was conceded that the applicant was entitled to remission and the issue was the interpretation of the Statute.

22. The Court considers that this is not a case such as Richardson v Governor of Mountjoy Prison [1980] ILRM 82 where there was an

issue of a prisoner suffering ill treatment. See also Cahill v Governor of Military Barracks 1980 ILRM 191.

23. The traditional remedy of Habeas Corpus, now subsumed in Article 40 of the Constitution, is the great protection of the citizens’

liberty. It protects our citizens from arbitrary detention and imprisonment without legal warrant, not to mention “disappearances”

which, historically and now, are all too common in dictatorial regimes. The Courts must always enquire immediately into the grounds of

any person’s detention, when called upon to do so.

But the fact that every person detained has a right to have the legality of his detention examined by the Superior Courts does not

mean that such a person has a right to have every complaint he may have examined under the same extraordinary procedure.

The validity of Mr. Ryan’s detention under the order of the Circuit Criminal Court has not been challenged in these proceedings. But it

is said that the failure to grant him enhanced remission of sentence is itself flawed. But the Minister’s decision in this regard is prima

facie valid.

Mr. Ryan’s complaint about the procedures leading to the Minister’s decision may be examined by judicial review, and not under Article

40, for the reasons explained earlier in this judgment. The special and extraordinary features of the Article 40 procedure are not

required for the examination of this complaint.

24. In this case the order of the Circuit Criminal Court shows no invalidity on its face, indeed it was not contested that it was a valid

order.

25. Habeas Corpus is not the appropriate remedy for the issue of remission, as raised by the respondent.

26. Consequently, the return made by the appellant, the valid order of the Circuit Criminal Court, was sufficient upon which to detain

the appellant.

27. The Court will allow the appeal.