About this case:

• Citation:
  [2024] IECA 42
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Úna Ní Raifeartaigh

Delivering judgment for the Court of Appeal, Ms Justice Úna Ní Raifeartaigh stated that “there is an important distinction between the judicial function in making decisions and orders with respect to liberty and detention, on the one hand, and the concept of taking a person into custody, on the other”.

“The latter forms no part of the judicial function in this jurisdiction and that is precisely why the judicial arm has no resources of any kind for taking persons into custody. There is no such thing as judicial custody, or at least none has been demonstrated to this court to exist with reference to any authority,” she said.

Background

The appellant was serving a 19-year sentence for sexual offences when he was convicted of further crimes in the Circuit Court. In the course of his sentencing hearing on 29 July 2021, the appellant became agitated and threw a Bible at the sentencing judge. He was removed from the courtroom and the hearing continued via video link, with the sentencing judge deciding not to impose any sanction for the appellant’s behaviour.

The appellant was subsequently subject to a disciplinary hearing in prison in respect of his behaviour in the courtroom and a sanction of 40 days’ loss of privileges was imposed on the basis that he had offended against discipline contrary to the Prison Rules 2007.

Having unsuccessfully challenged this decision pursuant to s.14 of the Prison Act 2007, the appellant brought judicial review proceedings seeking a declaration that disciplining a prisoner for conduct while in the courtroom is not provided for in the 2007 Rules or the 2007 Act, seeking to quash the original decision and the decision affirming it, and seeking an order compelling the Prison Service to provide him with ordinary privileges.

The High Court

Mr Justice Charles Meenan determined that the appellant was in the lawful custody of the prison authorities “outside a prison” at the relevant time, finding that s.40 of the 2007 Act was “not exhaustive” of the circumstances in which prisoners are considered to be in lawful custody and that the 2007 Rules applied to the appellant, entitling the first respondent to discipline him notwithstanding his liability to sanction for contempt of court.

The appellant appealed to the Court of Appeal.

The Court of Appeal

Ms Justice Ní Raifeartaigh considered that the appellant “was at all times in the custody of the Governor on foot of the 19-year sentence and that he did not cease to be in that custody while he was in the courtroom for the purpose of the second set of criminal proceedings. Therefore he clearly fell within the definition of ‘prisoner’ in s.2 of the Act and Rule 2(2) of the Prison Rules even when he was produced in court for further criminal proceedings.”

In response to the appellant’s submission that he was in the custody of the court and not in the custody of the prison authorities when he threw the Bible, the judge remarked that she had never come across the phrase “custody of the court”, and that no authority for the existence of such a legal concept was put before the court nor did her own research uncover any material supporting such a concept.

She noted that “the fact that the court has the power to order detention does not appear to me to involve the court itself taking custody of the person. The judicial arm of the State has no resources for doing so and is entirely dependent on the executive branch of the State for taking and maintaining custody of and over individual persons.”

The court was also unpersuaded that sole purpose of the 2007 Act and the 2007 Rules was to manage misconduct within the physical prison setting, commenting that “it accords with common sense that misconduct outside the physical prison setting may well have an impact on the running of the prison itself (the example given by the respondent of the staffing implications for escorting a dangerous prisoner to a hospital being very apt)”.

Ms Justice Ní Raifeartaigh was not convinced that the wording of s.40(2) of the 2007 Act was of any assistance to the appellant as his status was encompassed within s.40(1), being “absent from prison pursuant to… an order of a court”, and considered that the fact that s.40(2) did not explicitly refer to prisoners who are in the courtroom as being in lawful custody did not support the “novel proposition” of the concept of “judicial custody”.

The court rejected that the sentencing judge had the exclusive jurisdiction to deal with courtroom misconduct, noting that in cases where a judge was the direct victim of contempt, the contempt should be dealt with by the prosecution authorities. The court also considered that the co-existence of the court’s contempt jurisdiction and the power of the prison governor to sanction under the 2007 Rules was not precluded by law and that any unfairness arising from the sequencing of proceedings or other matters “must be examined on a case-by-case basis”.

Finally, Ms Justice Ní Raifeartaigh did not accept that the appellant could rely on the defence of absolute privilege under s.17 of the Defamation Act 2009 as excluding all other forms of misconduct by an accused in a courtroom, highlighting that same applies only to defamatory utterances in defamation actions, and that by reference to the Prohibition of Incitement to Hatred Act 1989, one could see “how a broad protection of utterances in court proceedings is necessary in order to enable the administration of justice to take place. Witnesses and accused persons need to be given a full opportunity to provide their narratives without fear of reprisals in subsequent proceedings. The same logic does not apply, for example, to physical violence or disruptive behaviour in the courtroom.”

Conclusion

Accordingly, the Court of Appeal determined that the appeal should be dismissed, but allowed the appellant’s point of appeal in respect of Mr Justice Meenan’s refusal to recommend payment under the Legal Aid (Custody Issues) Scheme.

Murray v. The Governor of Midlands Prison & Ors [2024] IECA 42