Right to Liberty Flashcards
where is the right to Liberty provided?
Article 40.4.1 states that ‘no citizen shall be deprived of his personal liberty save in accordance with law’. Courts emphasize importance of having ‘sufficient safeguards’ to protect the rights of an individual deprived of their liberty.
when does an article 40 habeas corpus application often occur?
An article 40 habeas corpus application often occurs where a person is being unlawfully detained and the constitution provides a procedure to secure their release a matter of urgency
what are the facts of Finnegan v Superintendent of Tallaght Garda Station (2019)
which was about a rearrest of prisoner who escaped 4 years before. Despite the fact that the detention was not contrary to any statute, the SC held this detention was not in accordance with law. Court felt that there can come a point in time where imprisonment would fail to be the admin of justice. Court stressed that the threshold would be very high and it would be a considerable time before mere delay, garda inactivity, error or even incompetence could lead to an unlawful re arrest. However the court felt that threshold had been met on the facts due to the following factors: Underlying offence was a summary offence, Applicant served large portion of sentence, Escape merely by walking out when had a concern for brothers welfare, No coordinated plan of escape or use of force, Resumed ordinary life at his address and ‘living in plain sight’ and he had a second child w partner.
The Habeus Corpus procedure
It is a two stage test:
1) Complaint made ex parte grounded on an affidavit setting out the facts. No strict requirement for an affidavit. Formal complaint may be sufficient. Also can be made by third party sometimes e.g. applicants solicitor in State v Ryan.
2) once HC satisfied that an inquiry is warranted, it may order the production of the body and require certification in writing the grounds of the applicants detention. That begins the second stage. At this return stage, argument can take place in relation to the legality of the detention. Court will then either decide that the applicant is being detained in accordance with law, or will direct his release.
what does article 40.4.3 provides when a statue is unconstitutional?
Article 40.4.3 provides that where the HC is satisfied that the applicant is being detained in accordance with law, but that the statute is unconstitutional, it shall state a case to the court of appeal as to the validity of the law. Applicant may be admitted to bail in such circumstances. Errors in the law frequently occur during the court of trial (as state in State v Frawley) however the remedy of appeal of judicial review is capable of providing a remedy without the need to commence article 40 proceedings.
what are the facts of Oladapo v Governor of Cloverhill,
(Misuse of police power may warrant release under art 40) A Nigerian national was arrested after shopping trip to NI. He failed to produce valid passport or identity document. Immigration act 2004 didn’t provide for power of detention. Rearrested at garda station under s5 of immigration act 2003 on basis that he was being refused permission to land in the state. SC held that the initial arrest had been unlawful as it wasn’t made of the purpose of charging him with the offence. This illegality tainted the next detention and the court directed his release pursuant to art 40.
