About this case:

• Citation:
  [2020] IESC 8
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

Background

The court was asked to determine whether it is permissible to dismiss an application for an Article 40 inquiry pursuant to Article 40.4.2 of Bunreacht na hÉireann on the grounds that the application constitutes an abuse of process or whether the Court is limited solely to the question of whether the detention of the applicant is in accordance with law.

A warrant of committal was issued by the District Court against Patrick Ryan for contempt of court contrary to section 6 of the Summary Jurisdiction (Ireland) Amendment Act 1871 and it was executed.

As the affidavit in the case was sworn by a solicitor who was not actually present at the proceedings, “what was presented to the High Court in this case to initiate the inquiry was far from accurate, did not set out the true position and positively misrepresented what had occurred in the District Court”.

This led to the finding by the Mr Justice Seamus Noonan, upheld by the Court of Appeal, that Mr Ryan had misrepresented how he had been treated by the District Judge and the opportunities which were afforded to him, and that there had been an abuse of process on the part of Mr Ryan. 

He appealed to the Supreme Court.

Supreme Court

Ms Justice Elizabeth Dunne said that the “importance of the remedy provided for in Article 40.4.2 flows from Article 40.4.1 of the Constitution which states that: ‘No citizen shall be deprived of his personal liberty save in accordance with law.’” She cited the judgment of Chief Justice Thomas Finlay in the case of McGlinchey v Governor of Portlaoise Prison [1988] I.R. 671 that an Article 40 inquiry is 

She noted that the remedy is “of such importance as to not be subject to strict procedural rules or regulations.” However, the remedy should not be utilised when the matters at issue as to the detention of the individual are more properly decided by judicial review, appeal or where another appropriate mechanism such as an application for bail is available to the individual.

Ms Justice Dunne stressed that in circumstances where a court is satisfied that an individual is unlawfully detained, that individual should be released from detention: “That is so notwithstanding any issue that may arise as to the conduct of the individual by which the inquiry was initiated or in the course of the inquiry. It does not seem to me that it is permissible to refuse to order the release of an individual in unlawful detention solely by reference to an abuse of the process of the courts engaged in by that individual.” 

She noted that, having regard to the matters described previously in the course of this judgment, there was no doubt whatsoever that the manner in which the proceedings were initiated and the sequence of swearing of affidavits which were not factually correct constituted an abuse of process. 

Conclusion

While a person unlawfully detained should be released even where there has been an abuse of process, this does not mean that an abuse of process of this kind “can be left without sanction”. The judge noted that there may be issues relating to costs of proceedings where a party has initiated such proceedings in circumstances which amount to an abuse of process but it is not appropriate or permissible to continue the unlawful detention of the individual as a form of sanction to deal with abuse of the process concerned.

Ms Justice Dunne said that it was manifestly clear that the District Court “bent over backwards to be patient and attempted to encourage and persuade Mr Ryan to co-operate with the Court in the context of the civil proceedings before the Court”. She said that the judge had warned him as to the manner in which he was conducting himself before the court and the consequences that could arise from his behaviour.

Mr Ryan was offered every opportunity to deal with the matter appropriately and he failed to do so. He was offered the opportunity to obtain legal advice, but he did not take that opportunity. The case was adjourned on at least one occasion in order to facilitate him in co-operating with the court, and he did not do so. There was therefore no denial of fair procedures to Mr Ryan, and his appeal was dismissed.