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Cite as: [2000] IESC 49

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Dalton v. Governor of the Training Unit [2000] IESC 49 (29th February, 2000)

No. 28/99
Denham, J.
McGuinness, J.
Hardiman, J.




[Judgments by Denham and Hardiman JJ; McGuinness concurring]

Judgment of The Hon. Mrs. Justice Denham delivered the 29th day of February, 2000.

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1. The contentious matter at the core of this appeal is a delay of approximately two years and nine months between the issue of warrants and their execution. There was no significant dispute as to the facts. The issue raised relates to the law.


2. James Jessie Dalton, hereinafter referred to as “the applicant”, was convicted of seven offences contrary to the Fisheries Acts, 1959 to 1980 at Kilbeggan District Court on 26th July, 1995 and was ordered to pay a fine for each of the offences. The time for making payment in respect of five of the offences expired after ninety days and in respect of two offences expired after one hundred and fifty days. It was ordered that, in default of payment of the total sum in each offence, the applicant be imprisoned in Mountjoy Prison for the period of forty-five days. The applicant failed to pay any of the fines. Warrants were issued in respect of five of the offences (more than 90 days having elapsed) on 20th December, 1995 and in respect of two of the offences (more than 150 days having elapsed) on 24th January, 1996. All warrants were transmitted to the Superintendent of the Garda Siochana in Mullingar for execution. On an unknown date prior to 19th February, 1996, the Minister for Justice, in correspondence with Mary Wallace, T.D., indicate that a petition had been opened on behalf of the applicant. Although the precise facts were not before the court it is clear that the petition was commenced for the benefit of the applicant. As a result of the said petition and the practice at the time the gardai refrained from executing the warrants. The gardai received further correspondence on the 28th January, 1997, the 2nd February, 1997, and 7th April, 1997 from the Department of Justice indicating that the warrants were still under consideration and consequently the gardai refrained from executing them. On 8th

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3. April, 1998 a general direction was given on behalf of the Commissioner of An Garda Siochana that all outstanding warrants, irrespective of the status of petitions still pending, should be executed. The direction stated:

“It is clear from the High Court decision in Shane Dunne v. D.P.P . that a warrant is a command to arrest which imposes a legal obligation on the Gardai. Warrants do not afford any discretion. In the case of the execution of penal warrants members should not enter into any compromise with the defendants, either by acceptance of payment by instalment or otherwise. It follows that any warrants properly addressed to members of An Garda Siochana must be executed as soon as is reasonably practicable. No distinction can legally be made between warrants in respect of which petitions have been lodged and other warrants which have not been petitioned. All warrants (regardless of petitions pending or lodged) shall promptly be executed.

On 1st October, 1998 the warrants were executed. On 13th October, 1998 the applicant applied to the President of the High Court who ordered an inquiry in accordance with Article 40.4.2 of the Constitution. The grounds certified for the detention of the applicant were the said seven warrants of execution.

Morris P. on 29th November, 1998 ordered the release of the applicant because of the delay in executing the warrants. The learned High Court judge divided the time period in issue into three tranches and then analysed each tranche.

Against that judgment the first and third named respondents have appealed. In essence the grounds of appeal are that:

(a) The learned trial judge erred in law and fact in his determination in relation to the period 11th September, 1995 to 19th February, 1996.

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(b) The learned trial judge erred in law and fact in finding that the period April, 1998 to October, 1998 constituted an unreasonable delay.

(c) The learned trial judge erred in law and in fact in having determined that there were reasonable grounds for withholding execution of the warrants for the period 19th February, 1996 to April, 1998 to have considered that the other two periods constituted delay sufficient to render the warrants ineffective.

(d) The learned trial judge erred in law and in fact in finding that the applicant in no way contributed to the delay.

Copies of the warrants were before the court. It is apparent that they were re-issued on three occasions. The grounds for the re-issuing were stated to be:

“4. I certify that after diligent search and for the following reason, namely residing Allmintown, Castlepollard, the person (or sufficient goods of the person) against whom the within Warrant was issued cannot be found.”

4. It was accepted by counsel on behalf of the respondents that the applicant was residing at his home at all times and that there was no difficulty in finding him. The words on the face of the warrant appear to have been a device used to enable the warrant to be reissued. These facts were not in issue in the High Court.


5. Article 13.6 of the Constitution provides:-

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.”

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6. Section 23 of the Criminal Justice Act, 1951, provides:-

“(1) .... the Government may commute or remit, in whole or in part, any punishment imposed by a Court exercising criminal jurisdiction, subject to such conditions as they may think proper.

(2) The Government may remit, in whole or in part, any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture.

(3) The Government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegation.”

7. The law on petitions to the Minister for Justice was stated in Brennan v. The Minister for Justice and ors. [1995] 1 IR 612 by Geoghegan J. He held that the power to commute or remit sentences conferred upon the Government by Article 13.6 of the Constitution should be exercised only in the most exceptional of circumstances. He stated at page 628:

“I am quite satisfied that Article 13, s.6 of the Constitution was never intended to create a parallel or alternative system of justice to that provided for by Article 34. Yet that is precisely what is happening in these cases. There is no evidence that the Minister found exceptional or unusual circumstances to justify her modifying the judge’s order. The kind of points put forward either by the petitioning T.D. or by the Garda superintendent in his respective reports or by the petitioner himself are all points which either were or could have been put before the judge when he was considering sentence. There was nothing in any of the reports before the Minister to indicate that that was not done and, if so, that it could not have been done. I am not necessarily suggesting that the Minister can only exercise her power if there is a change of circumstances following on the District Court Judge’s order. Indeed, I think it would be unwise to attempt any definition of what precisely the exceptional circumstances would have to be to justify remission of a fine. I think that in very exceptional cases a Minister might be able to exercise his or her power in circumstances where he or she believed the judge’s decision was wholly unsupportable. But it is not easy to conceive of circumstances where that would be justified even on an exceptional basis in the case of a District Court Judge’s order which can be appealed to the Circuit Court, which court must in turn embark on a complete rehearing. Even though the appeal to the Circuit Court would be final, a Circuit Court Judge who acted wholly irrationally would be subject to judicial review by the higher courts. It would seem to me, therefore, that it would be only in the rarest of circumstances (and I cannot

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conceive of what they might be) that the Minister can modify a District Court Judge’s order imposing a fine on the basis that he or she thought that the decision was wrong. There might be circumstances where some genuine unintended mistake was made by the judge which would lead to a legitimate exercise of the power. But in general it would seem to me that having regard to the clear provisions of the Constitution relating to the courts, the power under Article 13, s.6 must have been intended to be exercised sparingly. Indeed, this is reinforced by the fact that the power is, by the Constitution itself, vested only in the President. But the Article enables the power to be also vested in some other authority if it is conferred by law. That authority need not necessarily even be a Minister answerable to Dáil Éireann.”

8. I am satisfied that the judgment of Geoghegan J. indicates a correct approach to Article 13.6 of the Constitution.

9. The law on the execution of warrants is also at the kernel of this case. The warrants in issue include the words:

“This is to command you to whom this warrant is addressed to execute the said order against the said defendant as follows:

‘To lodge the defendant in the prison at MOUNTJOY to be imprisoned there for the period of 45 days, unless said sum be sooner paid.’

10. And for this the present warrant shall be a sufficient authority to all whom it may concern.”

11. A warrant is a command issuing from the court to the person named, usually the gardai. When considering the matter of warrants in The State (Flynn and McCormick) v. The Governor of Mountjoy Prison (Unreported, High Court, Barron J., 6th May, 1987) Barron J. stated at page 4:

“In my view, it is implicit that the warrant should be issued there and then when the sentence is imposed, and, where the sentence is imposed on appeal, as soon as is reasonably possible. Likewise, once it has issued, it must be

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executed as soon as is reasonably possible. If not, then a Defendant sentenced to a term of imprisonment may find himself or herself serving such sentence at a future date merely through a failure of administrative processes. The term of a sentence is not its only feature; its commencement date is equally important. If it is likely to be delayed, then there can be no certainty as to the sentence imposed; and, if it is delayed, then the sentence served may well not be the sentence imposed. Of course, none of this is applicable to a case where the failure to execute the warrant is the result of evasion on the part of the Defendant himself.”

12. The matter of warrants and delays in their execution was considered by Lynch J. in O’Driscoll v. Governor of Cork Prison [1989] ILRM 239. In that case, in April, 1987, the applicant was convicted on charges of assault and malicious damage and sentenced to three months’ imprisonment. He appealed against severity of sentence but, in May, 1987, he withdrew his appeal and made a plea that the commencement of his sentence should be postponed to 1 st July, 1987 on compassionate grounds. The Circuit Court judge acceded to the plea. The applicant undertook to surrender himself to the authorities at 9.00 a.m. on 1 st July, 1987 at Cork Courthouse. On that date the warrants for his arrest and detention were not yet issued and therefore he was not taken into custody. The applicant returned home and made no further attempt to surrender himself. On 30th September, 1987 two warrants were executed and the applicant was lodged in Cork prison. He sought to quash the warrants by way of judicial review on the ground that the delay between 1 st July and 30th September was such that the execution of the warrants would be unjust and unfair and should not be permitted. Lynch J., in refusing the application, stated at page 242:

“I am also satisfied that the warrants as drawn up and engrossed do not confer an unfettered discretion on the executive as to when the imprisonment will commence. The warrants must be executed within a reasonable time and in the circumstances of this case I am satisfied that there was no unreasonable delay on the part of the State authorities and that the warrants were accordingly executed within a reasonable time.”

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In Cunningham v. The Governor of Mountjoy Prison [1987] ILRM 33 the applicant was alleged to have been in breach of the terms of his temporary release pursuant to the provisions of s.2 of the Criminal Justice Act, 1960. The respondent requested the gardai to arrest the applicant and to return him to custody. A time of seven months was allowed to elapse before this request was complied with. No explanation was given for the delay. It was held that what had occurred was unfair and that the arrest was unlawful.

In Dutton v. District Justice O’Donnell [1989] IR 218 Barron J. analysed the relevant case law. At page 223 he stated:

“These cases show that delay in the exercise of a lawful power will not be permitted to deprive someone of a constitutional right. The extent of the impermissible delay will depend upon the particular right and the particular circumstances of each case. The line must be drawn at some point. In Cunninghan v. Governor of Mountjoy Prison [1987] ILRM 33 Egan J. said at page 35:-

‘If the purported re-activation had occurred not just seven months later but years later without explanation, could it be suggested that such re-activation was lawful? I would think not.’

13. I agree with this conclusion and it seems to me that the question in each case must be, at what point in time should the line be drawn.

14. In the present case, the delay was in the issue of the warrant, not in its execution. This does not affect the general principle because the period which is important is the time between the affirmation of the sentences and the arrest on foot on the warrants. This in the present case was a period of four and a half months. No satisfactory explanation has been given for this delay and in the circumstances I regard it as having been excessive.

15. The nature of a warrant was described in Dunne v. The Director of Public Prosecutions (Unreported, High Court, Carney J., 6th June, 1996). Carney J. stated at page 4:

“A warrant of apprehension is a command issued to the Gardai by a Court established under the Constitution to bring a named person before that Court to

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be dealt with according to law. It is not a document which merely vests a discretion in the Guards to apprehend the person named in it; it is a command to arrest that person immediately and bring him or her before the Court which issued it. That it is a command to arrest rather than merely an authority or permission to arrest can be clearly seen from the terms of the warrant in the instant case.”

16. The Courts (No. 2) Act, 1991 creates a six months time frame within which a warrant may be issued for the non-payment of a penal sum. Section 1(1) states:

1.- (1) Subject to subsection (2) of this section, in all cases of summary jurisdiction whenever an order has been made, upon the conviction of any person for an offence, for the payment of a penal sum or the performance of a condition and the penal sum has not been paid or the condition has not been performed, a warrant of committal to imprisonment for the nonpayment of the penal sum or the nonperformance of the condition may be issued by a justice of the District Court-

(a) not later than six months from the expiration of the time fixed by the said order for the payment of the penal sum or the performance of the condition where -

(i) the said order was made after the passing of this Act, or

(ii) the said order was made before the passing of this Act and the time for the payment of the penal sum or the performance of the condition expired after the passing of this Act, and

(b) not later than six months after the passing of this Act, where the time for the payment of the penal sum or the performance of the condition expired not earlier than the 1st day of July, 1989, and not later than the day before the passing of this Act.

(2) This section shall apply notwithstanding either-

(a) the references in section 23 of the Petty Sessions (Ireland) Act, 1851, to the times for the issue of any warrant, or

(b) the issue before the passing of this Act of any warrant under the said section 23 for the nonpayment of a penal sum or the nonperformance of a condition.”

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17. This shows a clear policy of the legislature as to the time within which warrants may be issued. There is then, of course, the law on the re-issuing of warrants which was not argued in the High Court. The warrants, the subject matter of this case, were issued originally within the maximum six months time frame envisaged by the Act of 1991.


18. There are two themes in this case, that of the petition to the Minister for Justice and that of the execution of warrants. Both are actions which occur at the coal face of the interaction between the judiciary and the executive. The checks and balances of democratic government require that they be carried out in a constitutional fashion. This imports constitutionality as to the actions of the organs of government and as to fair procedures for the person affected.

19. The President divided up the delay into three periods of time for analysis. This is an appropriate approach to the analysis of an alleged delay. However, in addition, the overall delay may be considered either as a single time frame or in conjunction with an analysis of particular sections of the time in issue. Thus, the learned trial judge did not err in his approach to the matter.

20. In relation to the first tranche of time, Morris P. recited dates relating to the due date for the payment of fines which were incorrect. The warrants were issued on 20th December, 1995 and 24th January, 1996. The applicant had been given 90 days to pay the fines on five warrants and 150 days on two warrants when the orders were made on 26th July, 1995. Thus, in the circumstances, there was no unreasonable delay in the issuing of the warrants of

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execution, in December and January. Thus, I would not hold that there was delay at that time.

21. In February, 1996 the applicant caused a petition to be opened on behalf of the applicant by the Minister for Justice. In accordance with the practice at that time no attempt was made to arrest the applicant while this petition was pending. However, the practice was altered and the changed practice was indicated by a direction on behalf of the Garda Commission, which has been set out above, on 8th April, 1998. Whilst it is understandable, in light of the (incorrect) practice of the time, that the applicant was not arrested by the gardai between February, 1996 and April, 1998, that practice cannot be endorsed by this court.

22. The gardai were informed in April, 1998 that all warrants must be executed as soon as reasonably practicable, that no distinction was to be made between warrants in respect of which petitions had been lodged and other warrants which had not been the subject of a petition and that all warrants should be executed promptly. Notwithstanding the original orders of the court and that direction the warrants were not executed until 1st October. 1998.

23. Morris P. held that there were reasonable grounds for withholding the execution of the warrants during the currency of the petition but that prior thereto and subsequent thereto there was no explanation for the delay offered. Consequently the applicant had established reasonable grounds for withholding the execution of the warrants. I am satisfied that there was a clerical error in the computation by Morris P. of the first period and that in the circumstances that time duration would not of itself constitute an unreasonable delay. In relation to the time when the petition was extant and the gardai (under the earlier incorrect practice) did not arrest the applicant I make two observations. First, whilst the petition was at the request of the applicant the incorrect practice was that of the gardai. Secondly, this practice was contrary to the orders of the court. Albeit that it may have been a

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misunderstanding of the law and the Constitution, I am satisfied that it would be inappropriate to endorse and uphold the incorrect practice.

24. The third tranche, from April, 1998 to 1st October, 1998, came at the end of a long duration of time. It came after the warrants had been issued over two years. It came after a very clear direction on behalf of the Garda Commissioner. It came with no explanation for the delay. Indeed, it came including a re-issuance of the warrants. In all of the circumstances I am satisfied that the warrants were not executed within a reasonable time and that this gave rise to an unfair process.

25. Reviewing the delay as a whole, i.e. from January, 1996 to October, 1998, I am satisfied that the warrants were not executed within a reasonable time. There was no evasion by the applicant. In all the circumstances there was unreasonable delay in the due execution of the warrants.

26. In conclusion, I would dismiss the appeal. It is somewhat surprising that there was no application for judicial review of the orders. However, the matter being an inquiry under Article 40.4.2 of the Constitution I determine that the return is insufficient to justify the detention of the applicant.

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No. 28/99
Denham, J.
McGuinness, J.
Hardiman, J.


JUDGMENT of Hardiman, J. delivered the 29th day of February 2000

27. I agree with the judgment of Denham J. and accordingly concur that the appeal be dismissed for the reasons she sets out. There is, however, another aspect of the case on which I wish to add a few words of my own.

28. In the return to the Order under Article 40.4.2 of the Constitution made by the learned President, the Governor simply relied on the warrants which he exhibited. These documents disclose that the warrants were re-issued on three occasions, namely, the 26th January 1997,

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the 28th January 1998 and the 2nd September 1998. The stated basis for these renewals, as the President found, was that the Applicant could not be found. It is now conceded that this was incorrect as a matter of fact, since he was available at his residence at all material times.

29. I have no doubt that this misrepresentation was entirely inadvertent. Indeed, the reason given for the Applicant’s alleged unavailability - that he was resident at a specified address in Castlepollard - is logically incapable of supporting the proposition which the Form of Endorsement requires the guard seeking renewal to certify. This is that “After diligent search.... the person (or sufficient goods of the person) against whom the within Warrant was issued cannot be found”. The guard was using a printed form which envisaged only a small number of contingencies and was attempting to describe within this rubric a situation which was quite outside its scope.

30. However that may be, the result is that the warrants, which alone can justify the Applicant’s detention, and which would be invalid unless renewed, were so renewed on a false basis. Furthermore, the fact that a false basis for renewal was advanced prevented the learned District Judge from becoming aware of the true position. Ms Moorehead, B.L. told the Court, in the course of her very thorough submissions, that the guards simply did not act to enforce the wan-ants because the penalties imposed were the subject of a petition. If this state of affairs had been brought to the attention of the learned District Judge he would have been quite entitled to take it into account in exercising his discretion on the question of renewal. I am not prepared to assume that he would have exercised this discretion in any particular way. The fact remains that he was actually invited to exercise it on a basis which was quite false.

31. I consider that this defect in the warrants is of a much more serious nature than that identified in an affidavit sworn for extradition purposes in McMahon v Leahy [1984] IR 525 .

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32. In that case, having identified defects in the swearing of the affidavit, McCarthy, J. said at p.547:

“Narrow though this approach may appear to be, the insistence on strict compliance with all requirements of the exercise of statutory powers is a fundamental feature of our jurisprudence; it is the duty of the superior courts to exercise the vigilance necessary to ensure such compliance “.

33. This must apply with all the more force where the defect is a false statement in a document grounding the exercise of a judicial discretion.

34. In the course of his judgment, at page 12, the learned President noted the defect to which I have drawn attention but did not find it necessary to rest his decision on it. Presumably for this reason, it was not referred to in the Notice of Appeal and there was no cross-appeal. I would not, however, have been prepared to hold that these circumstances could operate to prevent this Court taking cognizance of the defect in the warrants identified by the President. In my view the procedure laid down in Article 40.4.2 requires the High Court, and this Court on appeal, once a complaint of unlawful detention is made and a return certifying in writing the grounds of an applicant’s detention filed, to order the release of such a person “...unless satisfied that he is being detained in accordance with the law “. The imperatives of this unique procedure seem to me to take precedence over any rule of pleading or procedure. The requirement to be affirmatively satisfied of the legality of an applicant’s detention before declining to order his release does not seem to me to be met by considering only the points made in his initial complaint. It must often be the case, and was certainly the case here, that a particular point would not be within the applicant’s knowledge until after

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grounds of detention were certified. In the present case, this was because the renewals of the warrants were obtained by an ex parte procedure.

35. On that basis, also, I would have been prepared to order the Applicant’s release.

© 2000 Irish Supreme Court

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