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Cite as: [1998] IESC 34

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Bolger v. Garda Commissioner [1998] IESC 34 (2nd November, 1998)


O' Flaherty J,
Barrington J.,
Keane J.,



Judgment (ex-tempore) delivered on the 2nd day of November, 1998, by O’Flaherty J.

1. This is an appeal from a judgment and order of the High Court (Miss Justice Laffoy) of the 21st October last, in an Article 40 application brought on behalf of Peter Bolger. The Court has reached a clear conclusion on the matter that the appeal should be dismissed and does not think there is any necessity to reserve judgment in the matter.

2. The short background facts are that Peter Bolger was arrested in the early hours of Tuesday, 20th October on 14 extradition warrants that had been issued in England. The statutory obligation that devolves on the authorities in this jurisdiction is that if the Commissioner of the garda siochana is satisfied that


everything is in order he endorses the relevant warrant and that can be issued to any particular guard or to the guards in general. Section 45 of the Extradition Act, 1965, provides that once it is endorsed properly it can be executed by any member of the garda siochana in any part of the State.

Section 45(2) provides:-

“The person named or described in the warrant shall on arrest be brought before a judge of the District Court for the district in which he was arrested, if a judge is immediately available.”

3. The obligation on the arresting officer is to bring the man before a district judge as expeditiously as possible. That appears to have happened in this case. When they got to the District Court, Mr. Gabriel Haughton, solicitor, for Mr. Bolger, informed the district court judge that they intended to bring an Article 40 application in the High Court on behalf of Mr. Bolger. That Article 40 application, when it was opened to the High Court judge, contained contentions that this was not a genuine attempt to have this man extradited. It had base motives connected with some proceedings that had been brought by the Criminal Assets Bureau. I do not need to go into all that for the purposes of this decision.

4. When the sergeant in the Bridewell station certified as to the grounds for the detention of the appellant he made mention of the Prisons Act, 1956, and


that was said to render his certificate justifying the man’s detention inappropriate.

5. When the matter was before the district court judge and informed that this Article 40 matter was to be brought to the High Court he, in the exercise of his discretion - I have no doubt that he had seisin of the matter at this stage - so that the matter could be said to be at “hearing” as soon as the man appeared before him, and certainly as soon as Mr. Haughton stood up and said he wanted to bring his application to the High Court, the matter was then before the District Court, and so what was to be done with Mr. Bolger at this stage?

The Prisons Act, 1956, is as clear as a pikestaff in this regard, in my opinion.

6. It provides, in s. 1:-

“A prisoner may be detained temporarily in a lock-up provided in a garda siochana station or in any other place being a place, being a place designated for the purpose by the Minister for Justice -
(a) while in transit from the prison to a court for trial or on adjournment or remand;
(b) while a case in which he is involved is at hearing; on being


(c) for a period of not more than forty-eight hours while awaiting removal to a prison on conviction or remand.”

7. The only paragraph that can apply in my judgment is paragraph (b) “while a case in which he is involved is at hearing” so that while a formal opening of the case had not taken place, no evidence had been adduced, no submissions on the merits had been made but, as I said, a submission had been made on Mr. Bolger’s behalf that he wanted to bring an application in the High Court. It may be that there was no formal order of the District Court remanding the case but it did not require that. The matter was “at hearing” and Mr. Bolger had to be detained, unless he was released on bail. He could not be let back out on the street. If that had happened the arresting gardai and the gaoler garda would all have been in disobedience of their duties under the Extradition Act, 1965.

8. This is what Sergeant O’Meara certified and I quote it in full:-

“I HEREBY CERTIFY that I hold the applicant, Peter Edward Bolger, also known as Peter Bolger, in custody pursuant to the Prisons Act, 1956, pending his appearance in the District Court. Peter Edward Bolger’s extradition is requested on foot of fourteen warrants to arrest him duly issued by a Metropolitan Stipendiary Magistrate and Justice for the Inner London Area a judicial


authority in England and Wales, competent and having power under the law of England and Wales to issue those warrants.
Detective Sergeant Michael Heffernan was authorised by Assistant Commissioner Patrick O’Toole to execute those warrants and duly executed them by arresting him at 24 Glendown Lawn, Templeogue, Dublin 16, this morning at 7.30 am and bringing him before the Dublin Metropolitan District Court.
On the District Court being informed of an intention to bring this application the said court adjourned the matter pending its determination.
He is currently held in custody in the Bridewell Garda Station pending determination of this inquiry.”

9. As Mr. Justice Keane remarked in the course of the debate, could anything be clearer? The matter was adjourned pending the determination of the High Court hearing. The High Court hearing was occupied solely with a debate on the sufficiency of this certificate in writing. The relevant constitutional provision, it has been said time and time again, is one that is meant to be available to persons on a very informal basis and to require the attention of a court with immediate effect. It is as follows, Article 40.4.2 :-

“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge


thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”

10. So there is no formality provided for the certificate in writing. It is so that very often if someone, a convicted prisoner for example, is serving a sentence of so many years imprisonment, if he wishes to call his detention into question, the governor of prison may, no doubt, certify in writing that he holds him pursuant to such an order of such a court. He may well annex a copy of the warrant committing him to prison to his certificate in writing. I am not saying that he necessarily has to do so but for completeness sake it is probably a wise move.

11. Here we are not told that there was any formal order of remand or the like from the District Court but, as I said before, Mr. Bolger’s situation was clearly within the contemplation of s. 1 (b) of the 1956 Act and I have no doubt in my mind whatever but that his detention was lawful and it was justified in


accordance with that and the learned High Court judge was quite correct to refuse his release on that ground.

12. I would dismiss the appeal.

© 1998 Irish Supreme Court

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