Woman imprisoned for failure to surrender repossessed home found to be legally detained



A woman has been found to have been legally detained under a motion for attachment and committal issued for her failure to comply with an order for possession over her family home.

A motion for attachment and committal was issued on 8 December 2015 after Ms Claire Knowles failed to comply with an an order for possession over the property in Glanmire, County Cork.

On 9 December 2015, Mr Ben Gilroy, a litigant acting on behalf of the applicant, applied for an order under article 40.4 of the Constitution and under the Habeas Corpus Act 1781 for an inquiry into the legality of Ms Knowles’ detention.

Before considering the application for an inquiry, Mr Justice Richard Humphreys dealt with a number of preliminary issues.

First, he considered whether Mr Gilroy could represent the applicant.

He found that he could not. While an individual natural person had every right to represent themselves (Burke v. O’Halloran 3 I.R. 809), it was a fundamental postulate of the legal system that if they did not represent themselves, they must be represented by a qualified legal professional, who in turn owed professional duties to the court.

The Judge noted that this principle had been reaffirmed in the cases ofThe State (Burke) v. Lennon I.R. 136; Application of Woods I.R. 154; The State (Egan) v. Central Mental Hospital (Unreported, High Court, Kenny J., 27th January, 1972; Battle v. Irish Art Promotions Ltd I.R. 252 and Re Coffey IESC 11.

It was further noted that this general principle could only be subjected to “rare exceptions” where the general rule would cause “particular injustice” (Re Coffey IESC 11).

Noting the cases of Corrigan v. Governor of Mountjoy Prison (Court of Appeal, 2015/72 SS, 17th February, 2015) and O’Shea v. Governor of Mountjoy Prison IECA 101 in which exceptions did seem to be allowed, the Judge observed that:

“…some persons may have misinterpreted limited concessions afforded in particular cases as giving rise to a misconception that there is a general acceptance by the courts that there is no difficulty with the general principle of lay “representation” in Article 40 cases, thereby giving rise to unrealistically heightened expectations in that regard in subsequent cases such as the present one.”

The Judge then considered the preliminary issue of whether it was for the State, or the other party concerned, to justify committal for civil contempt.

The Judge cited his previous case, Grant v. Governor of Cloverhill Prison IEHC 768, in which he took the view that the person detaining the applicant is the appropriate respondent to an Article 40 application and is responsible for justifying the legality of the detention, including any steps that have occurred prior to the current detention and upon which its legality depends.

It is not necessary or appropriate to put on notice any other party, including an emanation of the State that made any underlying decision, citing the approach taken e.g., in McDonagh v. Governor of Cloverhill Prison 1 I.R. 394.

The Governor of Limerick Prison had submitted that it was not in a position to compel witnesses or the production of documentation, however, the Judge found that these were unsustainable objections, as the Court could assist in such matters.

The Governor also argued that the Bank of Ireland should be joined as a notice party to justify the detention, however this would mean that the obligation to defend the legality of the detention of the citizen by the State would be shifted onto the shoulders of a private party.

As a final preliminary issue, the Judge considered whether the Court could require a respondent to put further material on affidavit in the course of the inquiry.

The Governor’s representative had objected to this course on the grounds that article 40.4 itself provided a procedure for justifying a detention, namely a certificate, and the court should not, as he put it, “create a new procedure not envisaged by the Constitution”.

However, the Judge found that this took too narrow a view of the process, as it was already established that a respondent could supplement documentation, as explored in Grant v. Governor of Cloverhill Prison IEHC 768.

Furthermore, the Article 40 process remains an inquiry, and the Court retains an entitlement to direct that certain matters be formally put in evidence.

Finally, ensuring that documents handed to the court are also formally proved, if needs be by way of affidavit, facilitates further examination of the issues should that be required in any other forum and removes the potential for procedural confusion as to what was or was not properly before the court of first instance.

Turning to the specific grounds of challenge against detention, the Judge considered the applicant’s complaint that she had not been offered the opportunity to obtain legal representation.

However, the Judge noted that at no time had the applicant indicated an intention to be legally represented, and had always appeared prepared to deal with it herself, see The State (Sharkey) v. District Justice McArdle (Unreported, Supreme Court, Henchy J., 4th June, 1981).

As an aside, the Judge noted that: “in this context that the terms of the Legal Aid Custody Issues Scheme do not appear to cover applications for attachment and committal. Leaving aside the question of whether such legal aid is a constitutional or ECHR requirement, it would seem to me that it would be desirable even as a practical matter to expand the scheme to facilitate the legal representation of persons facing committal in any court. The availability of the scheme might do much to facilitate the making available of representation and to avoid problems such as occurred in this case in future.”

The applicant had also argued that she had been interrupted while making a submission. However, the Judge noted that there is not an unlimited right to make submissions without interruption to a judge sitting alone, and certainly not in a civil case (see Talbot v. Hermitage Golf Club IESC 57.

While the requirement that justice be seen to be done applied, in this case this requirement had not been infringed.

Finally, the applicant pointed to a number of clerical errors in the Circuit Court paperwork.

The Judge found that the error in the heading of the committal warrant is in principle capable of constituting a ground for an application for release under article 40. However, the practice of allowing the papers justifying the detention to be supplemented or corrected has been approved in numerous cases. Having regard to the fact that the error has been corrected, and indeed already stood corrected at the time of the governor’s certificate, release under article 40.4 was not appropriate in this case.

The Judge therefore conclude that the applicant was being detained lawfully.

  • by Rachel Killean for Irish Legal News