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Cite as: [1999] IESC 53

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Bolger v. Garda Commissioner [1999] IESC 53; [2000] 1 ILRM 136 (8th July, 1999)

Record No. 345/98, 346/98 & 27/99
Hamilton C.J.
Barrington J.
Keane J.
Murphy J.
Lynch J.




JUDGMENT (ex-tempore) delivered on the 8th day of July, 1999 by Lynch, J.

1. At about half past seven on the morning of Tuesday, 20th October, 1998 a number of members of the Garda Siochána arrived at the Appellant’s dwellinghouse and arrested him pursuant to warrants issued in the United Kingdom and duly backed in this State for extradition to the United Kingdom. He was brought from his dwellinghouse to a local Garda Station and thence to the Bridewell Garda Station and thence to the District Court where the matter of the extradition was mentioned. On application of his Solicitor the extradition proceedings were adjourned because the Solicitor indicated that he


wished to make an application for an Order under Article 40 of the Constitution in the High Court.

2. That application for the Order under Article 40 S.4 came on at the sitting of the High Court at about half past ten or eleven o’clock before Mr. Justice O’Sullivan and it was successful in the sense that the High Court ordered that the Appellant be brought before the High Court at 2pm and that the grounds of his detention be certified. At 2pm he was brought before the High Court - on this occasion, it was Miss Justice Laffoy who was presiding. A Certificate from the Appellant’s jailer who was a Sergeant of the Garda Siochána, was produced to the Court, which showed that pursuant to the Prison’s Act, 1956 he was being detained in the custody of the Sergeant and for the time being he was being detained or was liable to be detained in the Bridewell Garda Station. Miss Justice Laffoy on that afternoon held that this was a valid Certificate for his detention and accordingly she refused to release him under Article 40 S.4. That should in one sense have been the end of the matter so far as the High Court was concerned but it wasn’t because she adjourned the matter to the next day, Wednesday 21st October, 1998 and it would seem from the whole circumstances of the case that the reason for that adjournment must have been that the Appellant indicated that he wished to apply to the High Court for bail pending the extradition proceedings which would then as would be anticipated


continue in the District Court. Then on the 21st October, 1998 the matter came before Mr. Justice O’Higgins who considered in the first instance the Article 40 aspect of the application, and then adjourned it further. A bail application was made to Mr. Justice O’Higgins and he granted bail.

3. The Appellant then appealed against the refusal of Miss Justice Laffoy to order his release under Article 40 S.4. And that matter came before the Supreme Court on the 2nd November, 1998 when the Supreme Court dismissed the appeal and affirmed the Order of Miss Justice Laffoy with costs. The relevant parts of the Supreme Court Order of 2nd November, 1998 are as follows:-

“The Motion on the part of the Applicant pursuant to Notice of Appeal dated 28th day of October, 1998 by way of appeal from the Judgment and Order of the High Court (Miss Justice Laffoy) given and made on the 20th day of October, 1998 (holding that the Applicant was being lawfully detained in accordance with the Certificate herein) and for an Order setting aside the said Judgment and Order and in lieu thereof directing the Applicant ‘s immediate release on the grounds and as set forth in the said Notice of Appeal coming on for hearing before the Court this day.


It is ordered and adjudged that the appeal herein be dismissed and the said Judgment and Order of the High Court do stand affirmed accordingly.

And it is ordered that the first named Respondent do recover from the Applicant the costs of this issue in the High Court and in this Court when taxed and ascertained”.

4. Now that should have been the end of the Article 40 proceedings but it was not to be. And because it was not to be has caused enormous confusion today. The Appellant brought a Motion dated the 8th November of 1998, that is to say just six days after the Supreme Court Order which I have quoted and in that Motion the Appellant seeks (1) A Declaratory Order that the Applicant is not in lawful custody by virtue inter alia of there being no Extant Order of the Dublin Metropolitan District Court remanding him in custody or on bail. (2) An Order for his release, and that he be given back his passport forthwith and all his other bail conditions be discharged. (3) Further and other relief. (4) Costs. Apparently, as a counterblast to that Motion, the State brought a Motion dated the 25th November, that is to say about two weeks after the Appellant’s Motion. And that Motion sought (a) an Order dismissing the within proceedings on the grounds that the Applicant is not in detention (b) such


further or other alternative relief as to this honourable Court seems just and (c) costs.

5. The two Motions came on for hearing before Mr. Justice O’Higgins in December of 1998 and by a written Judgment of the 15th December, which was incorporated in a formal Order of the 17th December, Mr. Justice O’Higgins rejected the Appellant’s Motion and allowed the State’s Motion. The Appellant’s Motion was struck out by the formal Order of 17th December, 1998 without any Order as to costs. As regards the State’s Motion, I quote from page 9 of the written Judgment of Mr. Justice O’Higgins in which he concludes:-

“As I have already said the Sheehan case is authority only for the proposition that an inquiry under Article 40 is not to be transformed to judicial review proceedings if in so doing a person’s detention and custody may be prolonged. In the factual situation of bail, the Court is entitled to see if the continuation of Article 40 proceedings is justified - or whether other relief would be more appropriate. This appears to me to be such a case - and on that basis too I declined to continue the inquiry. In those circumstances, it seems to me that the Order made should be discharged”.


6. A Notice of Appeal dated the 18th December 1998 was brought against that Order dated the 17th December, 1998. That Notice is in the proceedings which are Appeal No. 346 of 1998 and that Notice of Appeal is an appeal for (a) A declaration that the Appellant is entitled to maintain his application under Article 40 S.4 (b) An Order for Release of the Appellant within the meaning of Article 40 S.4 of the Constitution and that the first-named Respondent do return his passport forthwith and that all his bail conditions be discharged. (c) If necessary an Order remitting the proceedings to the High Court for further proceedings herein consistent with the Judgment and Order of this honourable Court. (d) Further and other relief and (e) costs.

7. Another Notice of Appeal undated December 1998 in relation to the Judgment delivered on the 15th December, 1998 by Mr. Justice O’Higgins was brought by the Appellant in Appeal No. 345 of 1998. That Notice of Appeal seeks identical relief to the relief sought in the Appeal No. 346 of 1998 with the addition of one further paragraph namely:-

(b) “An Order dismissing the Motion brought herein by the first-named Respondent (the State) “.

8. The grounds of appeal set out in the two Notices of Appeal although not identical are substantially similar.


9. The Article 40 proceedings were conclusively ended on the 2nd November, 1998 with the Supreme Court Judgment and both the foregoing appeals are therefore unsustainable. That however would not prevent a fresh application under Article 40 to the High Court if the detention became unlawful as could happen for other reasons than those dealt with in the Judgment of the Supreme Court, 1998. No such application has been brought. The Plaintiffs proceedings and appeals are an attempt to keep alive or revive a proceedings and procedure which has been spent. They are an attempt to avail of a fast track procedure under Article 40 of the Constitution where the appropriate remedies are by way of judicial review proceedings which are in being, or even plenary proceedings. It seems to me that to some extent this attempt to avail of Article 40 at the present time is an abuse of what is a very important remedy provided by the Constitution and I would dismiss both of the appeals before this Court.

© 1999 Irish Supreme Court

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