Duncan v. Governor of Portlaosie Prison [1997] IEHC 91; [1998] 1 IR 433 (9th June, 1997)

JUDGMENT of Mr Justice Kelly delivered the 9th day of June 1997 1. All of these Applicants seek Orders pursuant to Article 40 of the Constitution directing their immediate release from custody. Each of them was, on dates prior to 6th November, 1996, remanded in custody pursuant to Orders of the Special Criminal Court. Those Orders of remand were invalid. This was so because one of the three Judges who comprised the Special Criminal Court on the dates upon which the remands were made was, unknown to himself, no longer a serving member of that Court. 2. This unhappy state of affairs came to the knowledge of the authorities on the 6th November, 1996 and as a result certain steps were taken. The background to all of this is set forth in considerable detail in the judgment of the Divisional Court in Hegarty v. The Governor of Limerick Prison (unreported 26th February, 1997) and in my own judgment in O'Hagan and Ors v. Governor of Portlaoise Prison (unreported 30th May, 1997). There is a good deal of over-lapping between the submissions which were made in those cases upon which judgments were delivered and those made in the present case. It will not therefore, be necessary to rehearse in detail the determinations of law which were made by the Divisional Court or by myself in the earlier cases insofar as they have a relevance to the present case. I propose to deal in detail only with those factual elements and legal submissions which differ from the earlier cases. 3. All of the Applicants, save Joseph Kavanagh, were on the night of the 6th November, 1996 detained at Portlaoise Prison. Mr. Kavanagh was at Mountjoy Prison. In my judgment in the case of O'Hagan and Others v. Governor of Portlaoise Prison , I have set out what happened at Portlaoise Prison once the Minister for Justice gave the direction that prisoners detained on foot of invalid orders made by the Special Criminal Court should be released. I must now set forth what happened at Mountjoy Prison on that night. 4. The officer in charge of the prison was Assistant Chief Officer Duggan. He has given evidence before me. He testified that at about one o'clock in the morning he received a telephone call from Mr. Aylward in the Department of Justice. Mr. Aylward told him to release Joseph Kavanagh. The Gardai had come to the prison at about 11.30 on the night of the 6th November, 1996 enquiring of Mr. Duggan if he knew anything about a possible release of Mr. Kavanagh. At that stage he did not. 5. When Assistant Chief Officer Duggan got the phone call from Mr. Aylward, he telephoned the Chief Officer, who already knew about the direction to release. He then telephoned another Assistant Chief Officer, a Mr. Kavanagh, who was in charge of the Separation Unit where the prisoner Kavanagh was detained. Mr. Duggan gave Assistant Chief Officer Kavanagh directions to release the prisoner Kavanagh. 6. Assistant Chief Officer Duggan accompanied the prisoner to the main gate in handcuffs. This was normal practice when a prisoner was taken from the Separation Unit to any part of the prison. In any event, Assistant Chief Officer Duggan was clear that given that the prisoner was being moved at one o'clock in the morning from the Separation Unit, he ought to be handcuffed for safety reasons. The prisoner was taken to the main gate by car. Assistant Chief Officer Duggan, the prisoner and other staff members left the car at the inner gate. They then went through the two gates and stood outside the main gate of the prison. There was some difficulty encountered in trying to take the handcuffs off the prisoner but this was done. Once the handcuffs were taken off, prison staff stood back and the Gardai approached. An arrest was effected outside the main gate of the prison on Prison Avenue. 7. Insofar as there is a conflict of testimony between the Applicant Kavanagh and Assistant Chief Officer Duggan or Detective Superintendent Gordon, I prefer the evidence of both the prison officer and the Garda. Having had an opportunity of seeing these witnesses giving evidence and being cross-examined, I would not be prepared to accept Mr. Kavanagh's version of events in preference to that of the other witnesses. Accordingly, I hold that at the time that the prisoner was arrested, he had been freed from handcuffs and was not under any form of restraint on the part of prison staff. The arrest was effected on Prison Avenue which is an avenue which leads from the main gate of the prison to the North Circular Road. Vehicular traffic can go in and out of Prison Avenue and there are gates at the end of it which open on to the North Circular Road. Prison Avenue is prison property and the gates at the end of it are not normally locked but merely closed over at night. 8. Mr. Kavanagh was not given his property when he was being released because the prison staff were anxious to release him immediately and, in any event, a release in the small hours of the morning would have created administrative difficulties in that regard. 9. Insofar as the releases of the other prisoners from Portlaoise are concerned, there is little to add to the description of what took place at that prison to what is set forth in the judgment which I delivered in O'Hagan and Others and to which I have already made reference. There is, however, one point of detail to which considerable significance was attached by Mr. Forde. In the course of his submissions, he contended that the locus of the arrest was an important element to be borne in mind in the case of all of these prisoners. There is no doubt but that Mr. Kavanagh was arrested on prison property. Neither is there any doubt but that the Applicants who were arrested at Portlaoise Prison were also on prison property. The evidence in their case demonstrates that having been brought directly to the main gate for discharge, each prisoner was in turn brought into the first gatelock and identified to the officer in charge of the main gate. Each was then brought through what is called the middle lock and were discharged from the prison through the third or outer gatelock, having been identified to each gate officer in turn. Once they went outside the main gate, however, they remained on prison property and there were three further gates which would have to be negotiated before arrival on the main road. 10. I am satisfied that both in relation to Portlaoise and Mountjoy Prisons at the time when the Applicants were arrested, the Governors' custody of them had ceased. But even if I am wrong in that view, it does not appear to me to alter the position at law since there is nothing unlawful per se about an arrest of a person already in custody or detention provided that such arrest is carried out with the consent of the custodian or detainer. In the case of these prisoners, once the respective prison authorities were informed of the ministerial order, everything that they did from that moment on was with a view to bringing their custody of the prisoners to an end. In my view they succeeded in that. But even if they did not, there is no doubt but that the prison authorities consented to the arrests taking place and that is sufficient to make the arrests lawful (see The People (DPP) v. Kehoe [1986] I. R. 444, Hegarty v. Governor of Limerick Prison (unreported 26th February, 1997) and In Re Ó Laighleis 1960 I. R. 93). 11. I return to the emphasis which has been placed upon the fact that these arrests took place on prison property. Given the views which I have already expressed, it appears to me that the locus of the arrest has no significance. I am fortified in that, not merely by reference to the cases already cited, but also by reference to the judgment of Walsh J. in In Re: Paul Singer (No. 2) (1964) 98 I. L. T. R. 112. At page 124 Walsh J. said this:- "Once he was free of the restraint of the Governor of the Prison the order of the Supreme Court had, in my opinion, been complied with and even if the place upon which he was arrested could properly be described as property under the control of the prison authorities, there is nothing in that fact to render the apprehension by the Garda officers illegal, once they had a valid warrant for his arrest". 12. That expression of view by Walsh J. appears to me to put beyond doubt the fact that the place where an arrest is effected does not affect the lawfulness of the arrest. Neither does the fact that the arrests in suit were effected after a period of unlawful detention affect their legality or efficacy. (See The People (DPP) v. Colm O'Shea (1981) 2 Frewen 57). 13. In these circumstances I reject the complaint which is made on this aspect of the matter. In so doing, I repeat my findings and the view of the law which I have already expressed in O'Hagan's case in respect of all of the other submissions which were made in respect of these Applicants and which are common to all of the cases. 14. The next point to which I must make reference is the assertion of a conspiracy having taken place between the Respondents and the Notice Parties. In essence it amounted to an allegation of conspiracy to keep the Applicants in unlawful custody so as to enable the State to bring about a situation where there would be no genuine release and then the effecting of a purportedly lawful arrest and a recharging before the Special Criminal Court. 15. As the case went on, various concessions were made by Counsel for the Applicants in respect of this allegation of conspiracy. First, it was accepted that there was insufficient evidence to involve the Minister for Justice or her officials. It was also conceded that there was insufficient evidence of the Attorney General being involved but the claim was maintained to some extent against the Director of Public Prosecutions. 16. On the evidence that I have heard, I am quite satisfied that what took place in relation to these Applicants was no different to what occurred in the case of Michael Hegarty. The argument in relation to conspiracy was dealt with very fully by the judgment of the Divisional Court at pages 14 to 16. I do not propose to repeat in this judgment what was said there save to affirm that there is, in my view, no evidence of any agreement on the part of the State authorities to do something unlawful or to do something lawful by unlawful means. 17. As an adjunct to this argument it was suggested that although there might not have been any conspiracy between the Attorney General and the Minister and the officials of their offices, nonetheless there was a knowing detention of the Applicants for a protracted period so as to ensure that rearrests could be carried out efficaciously. I find no evidence to support this proposition. 18. I must deal with another submission which was made by Mr. Forde and which did not figure in any of the other cases. He says that this case demonstrates massive incompetence on the part of the State and its officers. He contends that everything that happened from the decision of the Government of the 1st August, 1996 to the events of the night of the 6th and 7th November, 1996 was characterised by blunder after blunder. Indeed, Mr. Ryan, on behalf of the State authorities other than the Director of Public Prosecutions, has described what happened as a chapter of accidents. That was no exaggeration of what occurred. Mr. Forde says that the Court ought to mark its displeasure at this incompetence on the part of the State by directing the release of the Applicants. I reject this contention. I am not engaged in an exercise of punishing the State. I am investigating the lawfulness of the detention of these Applicants. There might be something to be said for this argument if I was dealing with a case similar on its facts to those disclosed in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I. R. 550. But this case bears no resemblance to Trimbole's case on its facts. It is wholly different. Furthermore, in this case even if there were unlawful activity, there are no fruits from it. The Applicants are now in precisely the same position that they would have been in if the chapter of accidents in question had not taken place. I therefore reject this line of argument. 19. Finally, I must deal with a matter which arose early in the hearing when an application was made by Mr. Ryan to set aside a subpoena which had been issued at the suit of the Applicants directed to the Attorney General. The Applicants wished to call the Attorney General as their witness on this inquiry. Mr. Ryan objected. He did not seek to avoid having the Attorney General give evidence. But he argued that there was no relevant evidence which the Attorney could give which would not be protected by legal professional privilege. I acceded to this application and indicated that I would give my reasons for so doing later. I now do so. 20. The first point that arises for decision is as to the jurisdiction of the Court to set aside a subpoena. In Cully v. Northern Bank Finance Corporation Limited [1984] I. L. R. M. 683, O'Hanlon J. set aside a subpoena on the grounds that the witness against whom it was directed would, if he gave evidence, be acting in breach of the oath of secrecy which he was required by statute to take when he entered the service of the Central Bank. That Judge held that the provisions of Section 31 of the Central Bank Act, 1942 gave rise to a claim of privilege on grounds of public policy from disclosure of any information of the type referred to in the oath of secrecy. He held that he had jurisdiction to set aside the subpoena and cited, in support of that contention, the judgment of Scarman L. J. in Senior v. Holdsworth Ex-parte Independent Television News Limited [1976] Q. B. 23. He cited with approval the following passage from the judgment of Scarman L. J. (as he then was):- "The law, as it now stands, does not enable the Court to refuse to issue a witness summons (or subpoena) for the production of documents upon due application. The remedy available to the person served is to move to set the summons aside. On such an application the Court will set it aside if what is sought is irrelevant, oppressive, an abuse of the process of the Court, or recognised by the law as being privileged from production. Further, even if the documents sought be relevant and not otherwise privileged from production, the Court has a residual discretion in certain circumstances to protect the document and set the summons aside". 21. Whilst the above decision of O'Hanlon J. was not cited in argument, reliance was placed upon the judgment of Morris J. in S. P. U. C. v. Grogan (No. 3) [1992] 2 I. R. 471. Whilst Morris J. was not there asked to set aside a subpoena, he did make an order refusing to allow evidence to be given to the Court by an official of the Attorney General's office in circumstances where he was satisfied that such evidence was not admissible. The net effect of that decision in practical terms is the same as if a subpoena were set aside. 22. Finally, there is a decision of the Queen's Bench Divisional Court in R.v. Lewes Justices Ex-parte The Gaming Board of Great Britain [1971] 2 All E. R. 1126 where Lord Parker C. J. said:- "I am quite satisfied that in any event it is within the inherent jurisdiction of this Court, just as it was before subpoenas were abolished, to set aside a witness summons if there has been an abuse of the process of the Court or if it is clear in fact that the witness cannot give relevant evidence". 23. I am, therefore, satisfied that this Court does have an inherent jurisdiction to set aside a subpoena. 24. As I already indicated, I set aside the subpoena on foot of the inherent jurisdiction of the Court. I did so because I was satisfied (a) that on the basis of the documents which had been exchanged between the parties and the issues as defined in them, I could not see how anything that the Attorney General did (however his functions are defined) or how any activity or non-activity could be regarded as material to the question of the lawfulness of the detention of the Applicants on foot of the order made by the Special Criminal Court on the 7th November, 1996. (b) Even if there was evidence which could be given by the Attorney General and which would be relevant to that issue, I was not satisfied that such evidence could be given without interfering with the privilege which the Attorney General undoubtedly has in relation to his role as legal adviser to the Government. 25. However, in setting aside the subpoena I made it clear that if in the course of the hearing of the inquiry it became apparent that the evidence of the Attorney General was required in relation to any matter which was both relevant and not apparently protected by legal professional privilege, I would consider an application from the Applicants for the issue of a further subpoena directed to him. No such application was made. 26. For the reasons set forth in this judgment and in the earlier judgments of the Divisional Court in Hegarty's case and my own judgment in O'Hagan and Others v. The Governor of Portlaoise Prison , I am satisfied that the detention of all of these Applicants is lawful and that they are not entitled to orders for their release pursuant to Article 40 of the Constitution. 27. These applications are dismissed. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII