Prison Governor wins appeal against prisoner release due to inaccurate certificate of detention

About this case:

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Mr Patrick McDonagh was convicted in his absence in the District Court in December 2013 of the offence of using marked motor fuel in his motor car, contrary to s. 102 of the Finance Act 1999 (as amended).

While it appeared that the District Court decided to impose a fine of €3,000 and, in default of payment, a sentence of 90 days’ imprisonment, the fine which was recorded in the Courts Service system was one of €300 rather than €3,000. A fines notes was later issued to Mr McDonagh which recorded the sum which was payable as €300.

Mr McDonagh made no attempt to pay the fine, and was originally imprisoned on 11th October 2014 following his failure to pay the fine.

Although he was released on temporary release, he did not comply with the conditions attaching to that temporary release and was re-committed to prison on 31st October 2014.

In November 2014 his solicitor made an application for an inquiry under article 40.4.2 of the Constitution into the legality of the applicant’s detention on the ground that the committal warrant recorded the wrong penalty and was therefore legally infirm.

It emerged that the original warrant had been amended by the District Court. It was on this amended order that the Governor sought to rely in order to justify the validity of the detention.

However, it was accepted that no application to amend the certificate was made on behalf of the Governor during the currency of the hearing in the High Court. The Governor submitted that this course was both unnecessary and, in some respects, even inappropriate given that the applicant was by this stage on bail.

The High Court found that detention warrant which had been sent to the applicant carried the wrong penalty, and as the default option of prison was in juxtaposition with the monetary penalty, the inaccurate nature of the warrant was accordingly fundamental.

The applicant’s release was therefore ordered, against which the Governor appealed to the Court of Appeal.

The Court of Appeal noted that there have been a series of recent authorities dealing with the nature of documentary error, and whether the defects in question were either harmless or so fundamental that they destroyed the validity of the document.

These included MC v. Director of Oberstown IEHC 222, Carroll v. Governor of Mountjoy Prison 3 I.R. 392, GE v. Governor of Cloverhill Prison IESC 41; Joyce v. Governor of the Dóchas Centre 2 I.R. 678; Miller v. Governor of the Midlands Prison IEHC 176 and Moore v. Governor of Wheatfield Prison IEHC 147.

However, in this case the Court found that it was not required to review the authorities, as the Governor freely conceded that the original warrant was defective and could not properly support the detention of the applicant.

In view of that concession, the appeal fundamentally concerned an evidential issue: in what, if any, circumstances can the detainer seek to go behind the (admittedly defective) warrant by introducing a fresh warrant and thus seek to justify the detention?

The Court observed that the procedure envisaged by article 40.4.2 was quite clear:

“The applicant may first apply to “any and every judge” of the High Court that he or she is being unlawfully detained. If the judge of the High Court in question considers that an inquiry should be commenced, the Court shall “forthwith enquire into the said” complaint. The Court is further empowered to direct the production of “the body of such person” before it on a named day and to require the detainer to certify “in writing the grounds of his detention.” The Court must then give the detainer “an opportunity of justifying the detention”. If, having heard the detainer, the Court is not satisfied that the applicant is “being detained in accordance with the law”, it must order the release of the applicant.”

It was observed that the power contained within Article 40.4.2 to certify the grounds for detention was not simply enabling, but was a mandatory power, as shown in the case of The State (Rogers) v. Galvin I.R. 249.

Thus, the opportunity to justify the detention must be by reference to the certificate filed by the detainer.

The Court then asked “What, then, is the position where the detainer accepts that the original certificate as filed no longer affords the grounds by which the validity of the detention can be justified?”

The Court noted that cases such as Joyce v. Governor of the Dóchas Centre 2 I.R. 678 and Miller v. Governor of the Midlands Prison IEHC 176, where applications to include new documentation which might have corrected the record came too late for any proper consideration.

In Carroll v. Governor of Mountjoy Prison 3 I.R. 392 the Judge hinted that he might have been prepared to receive such documentation in order that the record might be corrected.

In O’Farrell v. Governor of Portlaoise Prison (No.1) IEHC 416 the High Court expressly adjourned an application for release under article 40.4.2 to enable the Minister for Justice to apply to the High Court to have a defective warrant issued under the Transfer of Sentenced Persons Act 1995 duly corrected.

This approach received approval in Moore v. Governor of Wheatfield Prison IEHC 147.

All authorities stressed the importance of a clear and accurate record in matter of detention.

Considering the present case, the Court of Appeal found that it is clear that where the detainer no longer wishes to rely on the original certificate he or she must first seek leave from the High Court to apply to amend or replace the existing article 40.4.2 certificate of detention.

The Court further found that there was no reason in principle why, during the currency of the article 40.4.2 proceedings, such leave should not be granted, save where this would be obviously prejudicial or unfair or where the application to amend was simply made too late.

While in the present case no formal application had been made, it was implicit in the stand taken by the Governor that he wished to have additional evidence adduced in order that the record might be corrected.

The Court therefore considered that the most appropriate step was to formally allow the appeal by the Governor and to remit the matter to the High Court, at which point the Governor could apply to have the certificate amended.