Right to Liberty Flashcards
Article 40.4.1 states
‘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.
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. However this is not always achieved lightly and the courts often have to balance the right to liberty (and avoiding unlawful detention) with the other needs of the individual, for example for mentally ill individuals they may not have as much flexibility, and a hospital may have a duty to protect them by detaining them for a longer period.
We see that ‘in accordance with the law’ means something more than being detained pursuant to statute
This was well demonstrated in 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 (Article 40) procedure is set out in the constitution itself
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 the resp to certify 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. Art 40 cases take priority over other court business, but the court can grant adjournments in order to allow for proper presentation of the facts and legal issues.
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. Series of important cases on art 40 make it very clear that art 40 is not the appropriate remedy for all complaints concerning the lawfulness of detention. Where a decision is made that results in a person being detained, art 40 is not the appropriate remedy save for a fundamental denial of justice.
FX v Clinical Director of the CMH (2014)
serious offence, unfit to be tried, put in CMH (insanity act), brought art 40 application (CC hadn’t considered evidence of approved medical officer as requested by act), SC disagreed with HC and found an order ‘good on its face’ shouldn’t be subject of article 40 proceedings UNLESS some fundamental denial of justice or flaw. Again noted existence of appeals process correcting errors.
There are a number of circumstances where article 40 applications may be successful. For example,
an order for release may be made where a person is detained following abuse of policy authority. In Oladapo v Governor of Cloverhill, 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.
irregularity during the course of a trial
However irregularity during the course of a trial will rarely result in a successful article 40 application. Normally if an error occurs in a criminal trial, the error can be remedied upon appeal of by JR. rarely will an article 40 application be the appropriate remedy. State (Royle) v Kelly – applicant had been returned for trial in the SCC. Had been assigned a solicitor but the solicitor withdrew from the assignment. Court invited him to nominate another solicitor but he sought to have the first solicitor reassigned. This request was refused. Trial proceeded and the accused was convicted without legal representation and sentenced to 2 years imprisonment. Sought release under art 40 on the basis that this trial had been unsatisfactory. SC refused the application saying that even if the trial had been unsatisfactory, the matters of which the applicant complained were not irregularities or procedural deficiencies which invalidated any essential step leading to the sentence imposed on him. Therefore had no remedy under art 40.
While in general the manner in which a trial proceeds will not give rise to release under art 40 where the process is fundamentally flawed art 40 is appropriate remedy.
In McDonagh v Goveror of Cloverhill Prison (2005) the SC released the applicant under art 40. They had been refused bail in the SC. No section two bail objections were made, yet the judge refused bail on the basis that he could ‘go out and murder someone’. The SC found that this was ‘entirely wrong in principle’.
SMcG v Child and Family Agency (2017)
In the SC the agency argued that art 40 had no application to childcare proceedings and placing a child in care wasn’t detention. SC accepted that the use of art 40 in child care proceedings would be rare, but that didn’t mean it could not be used. Court followed FX and Ryan and held that JR is the preferred remedy where the detention is challenged on the basis of the invalidity of an existing order.
Conditions of imprisonment
while the conditions for imprisonment may entitle a prisoner to release under article 40 be granted due to the conditions of detention. He did say that such circumstances could exist if the authorities consciously or deliberately or intended to do nothing about or were unable to rectify conditions of detention which were a serious danger to his life or health. We saw previously that in this case an order of mandamus was granted. In Kinsella v Governor of Mountjoy (2012) a prisoner was confined to a padded cell for 11 days for his own safety (protected prisoner). While this did amount to a violation of constitutional rights the court didn’t find the conditions were enough to render the detention unlawful. Only in exceptional cases could a sentenced prisoner be released due to the ‘conditions’ of detention. This case contrasts with State (Richardson) v Governor of Mountjoy Prison where a prisoner was deliberately violated and subjected to inhuman and degrading treatment. Where there is a serious danger to his life or health the detention will be unlawful.
mentally ill patients
There is a lot of case law on mentally ill patients and the right to liberty, particularly relating to article 40 Habeus corpus applications. For example, in JH v Lawlor (2008) an applicant had been admitted as a voluntary patient but when he sought to leave he was detained under section 21 which allowed a 24 hour detention to enable an examination by a psychiatrist. Was seen by a psych who certified him as requiring involuntary detention. However the admission order was made 20 mins outside the 24 hour time limit. HC rejected the argument that this entitled the applicant to release under art 40. Held that a purposive approach was required to the interpretation of the act. Felt that the requirement in State v Frawley that a person convicted of a criminal offence shouldn’t be released under art 40 in the absence of a ‘default of fundamental requirements’ should also apply in these circumstances.
