Court of Appeal: Prison escapee’s return after five years ‘at large’ not unlawful

About this case:

• Judgment:
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Although the prisoner had not made any attempt to conceal his whereabouts throughout this time, and had not reoffended; Mr Justice John Hedigan stated that the failure to recommit the man was due to simple human error on the Gardaí’s part by not using PULSE to send out a nationwide notification of the escape. Despite the delay, there was no breach of fair procedures in returning him to custody.

Background

In November 2016, Justice Ní Raifeartaigh declared the November 2014 arrest of Mr Mark Finnegan to be not in accordance with law. The High Court judge also declared that Mr Finnegan’s detention in Wheatfield prison from the 10th November to the 10th December 2014 was not in accordance with law.

Appealing the High Court order, the Superintendent of Tallaght Garda Station and the Governor of Wheatfield Prison argued that the arrest and the detention was valid and lawful, and that Justice Ní Raifeartaigh erred in failing to hold that Mr Finnegan must serve out his sentence

Escape from Prison

In November 2008, Mr Finnegan was convicted for the offence of allowing himself to be carried in a mechanically propelled vehicle without the consent of the owner contrary to s. 112(1)(b) of the Road Traffic Act 1961 as amended, and in May 2009, he was sentenced 16 months’ imprisonment.

On the 31st October 2009, he escaped from Shelton Abbey and remained unlawfully at large until he presented himself at Tallaght Garda station in November 2014.

Immediately upon his absconding, the Gardaí at Arklow station were informed – however due to an oversight or human error, there was no warning entry made on PULSE. As a result, no notification to Gardaí nationwide was made – specifically the Gardaí in Tallaght were not put on notice.

After escaping from Shelton Abbey, Mr Finnegan returned to his family home in Tallaght where he had lived prior to his imprisonment. In 2011, he moved to a different address in Tallaght with his partner; he had a daughter in 2013; and collected social welfare in Tallaght. Throughout this time there was no Garda contact.

High Court

In the High Court, Justice Ní Raifeartaigh noted that the affidavit of the Garda Inspector admitted that there was no good explanation for what happened, that Mr Finnegan took no steps to conceal his whereabouts, and that the delay was on the wrong side of the notional dividing line between acceptable and unacceptable delay.

In all the circumstances, Justice Ní Raifeartaigh held that the arrest and detention were in breach of constitutional justice and not in accordance with law.

Court of Appeal

The following issues arose on appeal:

The reality of the case was that Mr Finnegan was able to remain at large due to the failure of Arklow Gardaí to use PULSE to make a nationwide notification about Mr Finnegan’s escape. Noting that the authorities’ explanation for delay was not one which did them much credit, Justice Hedigan stated that simple human error was a reality when using IT systems such as PULSE.

Had Gardaí in Tallaght been notified, it was reasonable to assume that a visit to Mr Finnegan’s family home in Jobstown, would have followed; however, in the circumstances, even had Gardaí recognised Mr Finnegan, absent any notification of his being unlawfully at large, they might well have thought he had benefited from some form of early release.

Justice Hedigan stated that little credit could be accorded to Mr Finnegan, other than that he had not offended since his escape. That escape was an indictable offence; a serious breach of trust in that he had been allowed a transfer from an enclosed prison to the open centre of Shelton Abbey.

In the years that Mr Finnegan failed to report to the authorities, remaining unlawfully at large – this constituted a lengthy period of simply ignoring the lawful sentence passed upon him, and a protracted evasion of justice.

Describing Mr Finnegan as someone who “fell between the cracks” of the Gardaí’s IT system, Justice Hedigan was satisfied that there was no evidence that the authorities were aware of the presence of Mr Finnegan at large in the Tallaght area during those years, nor was there any capricious or other motivation in leaving him at large until sometime when they might choose to pick him up and re-imprison him.

In response to the central question posed by Mr Finnegan, Justice Hedigan stated that it was “hard to see how issues of fair procedures could arise in the case of returning an escaped prisoner to custody”.

Allowing the appeal and setting aside the judgment of the High Court, Justice Hedigan found that the arrest and imprisonment of Mr Finnegan was made in accordance with law.