S53 Roche (also known as Dumbrell) v Governor of Cloverhill Prison [2014] IESC 53 (31 July 2014)

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Cite as: [2014] IESC 53

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Judgment Title: Roche (also known as Dumbrell) v Governor of Cloverhill Prison

Neutral Citation: [2014] IESC 53

Supreme Court Record Number: 319/14

High Court Record Number: 2014 1120 SS

Date of Delivery: 31/07/2014

Court: Supreme Court

Composition of Court: O'Donnell Donal J., MacMenamin J., Charleton J.

Judgment by: Charleton J.

Status of Judgment: Approved

An Chúirt Uachtarach

The Supreme Court

O’Donnell J
MacMenamin J
Charleton J

In the matter of an application pursuant to Article 40.4.2º of the Constitution of Ireland

Record number 2014/1120 SS

Appeal number 319/2014


Leroy Roche (also known as Dumbrell)


The Governor of Cloverhill Prison

Judgment of Mr Justice Charleton delivered on the 31st day of July 2014

1. This is an appeal against the judgment and order of MacEochaidh J, of 4 July 2014 [2014] IEHC 349, refusing the appellant an order declaring his detention in Cloverhill Prison unlawful pursuant to Article 40.4.2º of the Constitution. The appellant is accused of a criminal offence and had been granted bail on that charge. On a number of occasions, his bail had been revoked. This appeal concerns the last such revocation. Essentially, the appellant contends that in ordering that his bail be revoked on 27 June 2014, Judge Ring in the Dublin Circuit Criminal Court acted without jurisdiction, made a serious error of law and acted disproportionately. It is further argued that the order currently detaining the appellant in Cloverhill Prison does not show cause on its face.


2. The appellant is charged with an offence of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994 (No. 2 of 1994). There were several bail hearings in this case. The appellant was arrested and charged on 29 November 2013 in the District Court. Bail was refused and he was remanded in custody. On application on 9 December 2013 to the High Court, bail was granted on conditions by Butler J. These conditions encompassed residing at a particular address, signing on at a named Garda station during certain hours, observing a 19.00 to 07.00 hours curfew, staying out of Ballymun, having no contact with a co-accused and there were also monetary conditions. Three months later, on 3 March 2014, bail was revoked by Butler J for breach of these conditions. Because of a legislative provision allowing for the grant of bail, the appellant sought bail again in the District Court and this was granted on 28 March. In addition, the appellant was sent forward from the District Court for trial in the Dublin Circuit Criminal Court. On 11 April, the appellant came before the Circuit Court where an application was again made to revoke bail for breach of conditions. This was granted. On 28 April, he was readmitted by the Circuit Court to bail: the same conditions as Butler J had imposed were reimposed. On 19 June, application was made before Judge Ring for a relaxation of the bail conditions so that the appellant could travel on holiday to Portugal. Airline tickets were produced by him. The application was opposed by the prosecution and a hearing date was set for 23 June. On that day the appellant pleaded not guilty to the charges and a date for trial was set for 20 April 2014. Judge Ring heard the bail application and granted the temporary variation in conditions to enable the foreign holiday. The dates sought were from 24 June to 29 June. The material part of the order, after repeating the conditions outlined above that were derived from the order of Butler J, went on: “The court doth order that bail conditions entered into on 28/4/2014 be relaxed from 24/6/2014 until Sunday 29/6/2014. Accused to sign-on on 30/6/2014 and resume bail conditions. Accused to surrender passport to Kilmainham Garda Station on 29/6/2014 on his way back from [Dublin] Airport.” The appellant went out as expected but came back early to Dublin Airport on Wednesday 25 June at 22.00 hours, apparently after a row with his girlfriend. On his return, the appellant did not return to the house where he was supposed to reside, did not go home by calling in at Kilmainham Garda Station along the way and a breach of curfew was incidental to that. In the result, a Garda officer dealing with the case applied on 26 June to the Dublin Circuit Criminal Court under section 9(4) of the Bail Act 1997 for an arrest warrant claiming breaches of the conditions attached to bail. Part of the information grounding that application claimed a very serious assault by the appellant on his girlfriend. This was alleged to have happened in Portugal. The next day, Thursday, Judge Ring heard the application to revoke bail. It is the resulting order that is in question in this appeal. The evidence in relation to the assault in Portugal was excluded by Judge Ring as hearsay. The appellant did not give any evidence at this hearing, but following on prosecution evidence, submissions were made on his behalf that the terms of the order were not breached since the conditions about residence, surrendering his passport and curfew were not operative until, under the terms of the order, the next Sunday and were as of that time “relaxed”; to quote the order. Judge Ring did not agree. She was satisfied of breaches in the bail conditions related to residence, surrendering his passport and curfew.

The Bail Act 1997
3. The sixteenth amendment to the Constitution introduced Article 40.4.6º providing for the refusal of bail to prevent serious crime. The text reads:

      Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.
4. The legal provision consequently made was the Bail Act 1997 (No. 16 of 1997) which has subsequently been amended, hereafter referred to as: the Act of 1997. This Act, with the aid of the Law Reform Commission website, is quoted as amended: principally by the Children Act 2001; the Courts and by the Court Officers Act 2002; the Criminal Justice Act 2007; and by the Criminal Justice Miscellaneous Provisions Act 2009. Section 2 of the Act of 1997 provides for a court with seisin of a criminal case to refuse bail in words mirroring that of Article 40.4.6º. It also provides for regard to be had to various factors, including how serious the offence charged is, how serious the apprehended sentence may be, the likely cogency of proposed evidence on the existing charge, any record of offences already committed while on bail, any prior convictions, any other offences awaiting trial and, where one of these factors applies, an additional factor of addiction to drugs can also be taken into the balance. The precise terms are not in contest here. As this indicates, however, the Act of 1997 introduced a new ground for refusal of bail whereas, up to that legislation, bail might only be refused where there was a probability that the accused would abscond instead of facing trial or would interfere with the trial processes; essentially evidence or witnesses. Counsel for the appellant argues that the Act of 1997 constitutes, in effect, a complete code for the disposal of bail matters by courts and further argues that the invocation of section 9(4) in order to bring the appellant before Judge Ring had the effect of confining her jurisdiction to estreatment of monies for breach of the bail bond and in particular excluded completely any jurisdiction in the Circuit Court to revoke bail.

5. The Act of 1997 does not replace the full and original jurisdiction of the High Court in bail matters nor can it be read as replacing the jurisdiction of the court seised with the trial of the offence charged. The legislation does not amount to a code providing any full statement on the law on bail. The statute primarily provides for the introduction and processing of the new ground for refusal of bail while, in places, it introduces amendments to the existing common law on bail. Section 2A allows limited opinion evidence. Section 3 allows for the renewal of a bail application where there was a refusal of bail under section 2 but the trial has not occurred within four months of that refusal. Section 4 deals with the introduction of evidence of prior convictions at bail hearings by restricting the publication by the media of such testimony. This is in aid of a fair trial. Section 5 provides for payment of money into court as part of a recognisance. Section 6 deals with the conditions that may be attached to bail and these are general conditions but certain particular conditions are provided for. Section 6(3) allows a court to alter the conditions of bail and the text is thus:

      Where an accused person is admitted to bail by a court on his or her entering into a recognisance subject to one or more of the conditions referred to in subsection (1)(b), that court may, on the application to it in that behalf at any time by the accused person, if it considers it appropriate to do so, vary (whether by the alteration, addition or revocation of a condition) a condition.
6. Section 12 revokes section 33 of the Criminal Procedure Act 1967 but, quite similar to that section, section 6(5) allows for an application ex parte for a warrant to be issued to a Garda where it is shown that a person is about to breach a condition of bail. It is in the following terms:
      Where a person charged with an offence is admitted to bail by a court on his or her entering into a recognisance with or without a surety or sureties, the court may, on the application to it in that behalf by a surety or sureties of the accused person or of a member of the Garda Síochána and upon information being made in writing and on oath by or on behalf of such surety or member that the accused is about to contravene any of the conditions of the recognisance, issue a warrant for the arrest of the accused person.
7. Just as conditions may be altered on the application of the accused, the prosecution may also apply for the imposition of fresh conditions or the removal of others. This is provided for in section 6(9). In the Act of 1997, however, this power is made specific on the prosecution applying to arrest the accused under section 6(5) and that person being arrested with or without that warrant under section 6(6) and then brought before the court as soon as practicable under section 6(8). Thus section 6(9) is in the following terms:
      Where a person is brought before a court pursuant to subsection (8), the court may commit the person to prison to await his or her trial or until he or she enters a fresh recognisance or, if he or she is on remand, further remand him or her.
8. These provisions and other logical conditions of bail are applied by section 6A, inserted by section 10 of the Criminal Justice Act 2007, to appeal conditions attached to bail where a person is convicted before the District Court. Section 7 of the Act of 1997 deals with the sufficiency and suitability of bailspersons proposed to take notional custody of the accused pending trial. Section 8 allows for warrants of arrest to be made conditional on the accused entering into a recognisance as to appearance or the payment of monies into court. According to the side note, section 9 deals with the estreatment of monies paid into court. Like all side notes, and unlike recitals to any Directive or Regulation of the European Union, these are not a guide to interpretation. Section 18 of the Interpretation Act 2005 provides that marginal notes are not to “be taken as part of the enactment or be construed or judicially noticed in relation to the construction or interpretation of the enactment”. Thus section 9 is not to be considered as dealing exclusively with the subject matter of the side note. Instead its provisions are to be construed according to their plain wording read in the legislative context in which same occur. Section 9(1) allows a court to estreat money paid into court or promised as a condition of bail where the accused does not appear as required or breaches any condition of bail. Section 9(2) and (3) allows for the appointment of a receiver over property and for the application of such money as is recovered in that way. An arrest power is then set out in section 9(4):
      The court may, on the application of a member of the Garda Síochána and on information being made in writing and on oath by or on behalf of the member that the person has contravened a condition of the recognisance (other than the condition referred to in subsection (1) that he or she appear before a specified court on a specified date at a specified place), issue a warrant for the arrest of the person.
9. Under section 9(5) a Garda may arrest such a person without actual possession of the warrant. Section 9(8) prevents the premature release of any bail money; presumably so that it will not disappear prior to the estreatment application. Section 9(9) provides for notice to the surety of estreatment and notice to the prosecution under section 9(11) and, in that regard, the court under section 9(10) is to take hardship to the surety into account. The remaining subsections are concerned with compliance. Section 10 deals, by way of an insertion into Section 11 of the Criminal Justice Act, 1984, to some degree, with consecutive sentences for persons who commit offences while admitted to bail. Section 11A deals with regulations that may be passed in aid of the principles set out in the legislation. Sections 12, 13 and 11 are concerned with repeals and commencement.

10. It is appropriate now to briefly refer to the common law position on bail.

Bail at common law
11. It is argued that the Act of 1997 constitutes a code for the disposal of bail cases and that the choice of the prosecutor to apply for a warrant under section 9(4) limits the entitlements of the prosecution to estreatment only and not to any right to revoke the bail of the appellant of change the conditions of the recognisance. The learned trial judge dealt with the matter thus:

      On my reading of s. 9, the power of the court to make orders under s.9(1)(b) (i) to (iv) is not conditional upon application in that respect being made by the prosecutor. It appears that the court has the power to make those orders of its own motion once it is satisfied that bail conditions have been contravened This statutory power to react to an established breach of bail condition mirrors the common law position, as described by ÓNeill J in Rice v. Judge Mangan [2009] 3 IR 1 . . . . :

        "[21] I would not agree with this submission of the applicant. There is nothing in my view either in ss. 22 or 23 of the Criminal Procedure Act 1967 or in the Rules of the District Court which either expressly or by necessary implication prevent a District Judge from altering bail conditions or indeed revoking bail on his own motion. I would be of opinion that circumstances can occur in the course of proceedings which would justify a District Judge altering bail conditions or revoking bail in circumstances where no application for that was theretofore made. A conclusion therefore that a District Judge did not have this jurisdiction would be wrong."

      The view expressed by ÓNeill J in that passage reflects the agreed position of counsel that courts enjoy a common law power to revoke bail. It seems to be the position that no statutory basis for this power exists.
12. The view expressed by the learned trial judge and the view just quoted from Ó’Neill J are correct. There is no doubt that the Act of 1997 deals principally with the new exception to the right to bail arising from the constitutional presumption of innocence applicable to every accused person. It also introduces a limited code for the consequential provisions that were thought to be necessary to give effect to estreatment for breach of conditions, which might be imposed where that exception was invoked, and otherwise, and for the clarification of the status of persons remanded on bail. It does not replace the common law authority of every court with seisin of an offence to grant bail, and the coexisting jurisdiction of the High Court, to allow bail subject to conditions in addition to the fundamental one that the accused attend for trial, to revoke bail and to estreat monies promised by sureties. As noted in 1995 by the Law Reform Commission in their Report on an Examination of the Law on Bail LRC 50-1995, (Dublin, 1995), Ireland had not then introduced a comprehensive bail statute thus allowing the law on bail to be governed largely by the common law. In Joseph Gabbett, A Treatise on the Criminal Law (Dublin, 1843) it states that justices of the lower courts had power under “the ancient common law” to admit to bail save for treason, murder and some other offences. As to what bail means, the following occurs at page 171:
      This bailing (from the French, bailer, to deliver) signifies the delivery of a man out of custody, upon the undertaking of one of more persons for him that he will appear at the place of trial, to answer the charge against him; and the party so bailed is supposed, in law, to be in the friendly custody of his sureties; and, therefore, such bail or sureties may retake the prisoner at any time, (as on a Sunday,) or at any place, if they are apprehensive of his absconding, and bring him before a justice; and the justice is, thereupon, to commit the prisoner in discharge of the bail, or put him to find new sureties; and in thus surrendering the principal, the sureties may command the co-operation of the sheriff, and any of his officers.
13. Part of this ancient right of a surety to the bailing of an accused to claim the arrest of the person bailed to them is again stated in modern, and modified, form in section 6(5) of the Act of 1997. In The People (AG) v O’Callaghan [1966] IR 501 at 510-512, Walsh J also traces the full original jurisdiction of the High Court to grant bail back to those common law powers thus:
      While there is a distinction between applications for bail in the cases of prisoners who are on remand and those who have already been committed for trial and in the cases of persons who have already been convicted and in respect of which an appeal is pending, there are certain underlying principles common to all three forms of bail motion. The jurisdiction of the High Court to grant bail is an original jurisdiction and is in no sense a form of appeal from the District Court or from any other Court which may have dealt with the question of the bail of the applicant. The jurisdiction of the Courts to grant bail to accused persons has existed from the earliest times and has been stated to be "as old as the law of England itself" (see Stephen's History of the Criminal Law, vol. 1, at page 233). In Regina v. Spilsbury [[1898] 2 Q B 615] the Chief Justice, Lord Russell of Killowen, in dealing with the question, at p. 620, cited with approval the following passage from 1 Chitty's Criminal Law, 2nd ed., at p. 97: "The Court of King's Bench, or any judge thereof in vacation . . . . . . in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatever." That the High Court has this jurisdiction in full cannot be doubted. Not only has it had transferred to it the jurisdiction which at the commencement of the State was vested in or capable of being exercised by the then High Court of the Supreme Court of Judicature in Ireland or any division or judge thereof but is, by the very words of the Constitution itself in Article 34, invested with full original jurisdiction in all matters whether of law or fact, civil or criminal.

      The jurisdiction of the District Court to grant bail in cases of remand or of the committal for trial of persons is at present governed by the provisions of s. 16 of the Petty Sessions Act, 1851 (and in Dublin by s. 23 of the Indictable Offences (Ireland) Act, 1849). Bail cannot be granted by the District Court in treason but may, at the discretion of the Court and subject to those statutory provisions, be granted in all felonies or any attempt to commit a felony and there is also a discretion in the case of certain misdemeanours which are listed in the section. It is provided that in the case of all other indictable misdemeanours the person charged shall be admitted to bail as of right. The only power in the District Court in these latter cases is with regard to the sufficiency of the bail offered and the suitability of the sureties. See also the District Court Rules, Nos. 60, 72, 79 and 80. The granting of bail in the High Court is, with one curious exception, always discretionary. The exception appears to be in misdemeanour cases falling within s. 2 of the Irish Habeas Corpus Act, 1781 (21 and 22 Geo. 3, c. 11), where apparently the Court has no discretion and is bound to admit to bail, the only questions being with reference to the sufficiency of the bail: see In the Matter of Annie Frost [4 TLR 757]. This decision refers to s. 3 of the English Habeas Corpus Act of 1679 which is identical in terms with s. 2 of the Irish Act already referred to. The section is also referred to by Hanna J in Attorney General v. Duffy [1942] IR 529 at page 533.

      It had been at one time doubted whether the jurisdiction in the High Court extended to the grant of bail to persons under remand but it was clear long before 1924 that there was no such limitation: see Short and Mellor's Crown Practice (2nd ed., 1908), at pp. 280 to 281, and Hawkins' Pleas of the Crown (7th ed., vol. 3), at p. 204, sect. 47.

14. It is thus clear that the appellant on being brought before Judge Ring came before the court of trial. As such the Dublin Circuit Criminal Court was entitled to exercise the plenitude of that court’s powers as to bail. These included revoking the bail, imposing new conditions or allowing the accused to enter into the same conditions afresh. Even were it to be the case that the application for a warrant under section 9(4) of the Bail Act 1997 for an arrest warrant claiming breaches of the conditions attached to bail is a power specifically related to a later application involving the sureties and estreatment, once the accused was before the Circuit Court, any judge of that court, being the court of trial, was entitled to hear either the prosecution or the defence as to admission to bail or the conditions to be attached thereto. Further, even without that provision in the Act of 1997, an application might be made in an appropriate case in the exercise of the powers of the court of trial for a warrant claiming a breach of condition of bail or a well founded and reasonable apprehension that an accused had made flight plans.

15. It is for the court of trial, or for the High Court exercising its full and original jurisdiction, to arrange for the bailing or the custody of the accused on proper constitutional grounds and by exercising fair procedures. This is an essential and well-established part of the armoury of the courts in the conduct of criminal trials. It is to be noted, concerning the limited application of the Act of 1997, that section 3 thereof allows for a new application for bail to be made by an accused refused on the ground that there was a reasonable apprehension of the commission of a serious offence to reapply for bail due to a delay in trial of four months or more. Essentially this legislative provision is unnecessary. The reality is that at common law, an accused is entitled to apply to the court of trial or to the High Court for bail and is under no limitation in that regard, save perhaps that of showing a relevant and appropriately probative change of circumstances where repeated calls on that jurisdiction are made.

16. Consequently, there was no want of jurisdiction in the Circuit Criminal Court in revoking the bail of the appellant.

Breach of the order
17. Essentially, the learned Circuit Court judge decided to revoke the bail of the appellant because of what she regarded as a breach of the order. Judge Ring decided that she had jurisdiction to embark on such a hearing, and to make an order appropriate to her findings of fact in that regard. It is argued on behalf of the applicant that she was in error: firstly, it is claimed the order was wrong and, secondly, that such error results in the appellant now being in unlawful custody.

18. In the High Court, the learned trial judge dealt with the first issue arising in the following terms:

      My view is that Judge Ring did nothing surprising by holding that the bail conditions had been breached. I do not find that her order relaxing bail was ambiguous. Objectively speaking, it seems clear to me that the relaxation of the conditions of bail was for the purpose of facilitating a trip to Portugal of a duration set and chosen by the applicant. That was the sole purpose of the relaxation. Any abandonment or interruption of that trip would trigger the status quo ante. To answer the hypothesis identified by counsel for the applicant, if the trip had not been undertaken, in my view, there could be no question but that the relaxation would not apply. The bail conditions set originally by the High Court were only relaxed for a particular purpose, and if that purpose was interrupted or abandoned, then so too was the relaxation of the bail conditions.
19. Where a court order results in the loss of liberty is should be carefully prepared; J. O’G v Governor of Cork Prison [2007] 2 IR 204. The argument on this appeal ranged from construing a court order from the point of view of what construction would be put on it by a reasonable but disinterested person who has heard the entire of the case, to a claim that court orders ought to be construed as strictly as penal statutes. It should be remembered that in many cases an applicant for habeas corpus will seek to look behind the facts stated on the order and to allege that in the process of deprivation of liberty or that in the jurisdiction supposedly exercised a fundamental flaw exists. Consequently, it is difficult to see as fair the deprivation of a respondent in habeas corpus proceedings of any relevant explanation of the actual process that lead to the order. Since a court order speaks on its face and without the necessity of formal proof, it seems proper that it should be given the plain meaning attaching to its ordinary words in the context of the issue before the court making same. Here, there would have been no problem had this order recited in addition to dates some such wording as made it plain that while the appellant was in Ireland he was bound by the existing conditions of bail. The problem with the claim made by the respondent that the order only applied when the accused was out of Ireland, is that had he been late returning he would certainly have had some explaining to do. Instead, he returned early; but within the time when the strict conditions of his bail had, according to a plain reading of the court order, been relaxed.

20. As to the second point, it would be untenable to regard this error as being one which deprived Judge Ring of jurisdiction. It was not an error that entitled the applicant to immediate release under Article 40.4.2º of the Constitution. The learned trial judge in the High Court ruled on this point thus:

      On this application, the question for the court is not whether I would have reached a different conclusion to Judge Ring. I emphasise that in exercising jurisdiction under Article 40.4.2 of the Constitution, I am not acting in a simple appellate capacity. My task is to enquire, to borrow the words of Hogan J., in Cirpaci, whether the decision of Judge Ring reveals a fundamental breach of constitutional rights and the existence of a significant defect in the order. If Judge Ring has erred within jurisdiction, such would not attract, in my view, a remedy under Article 40 of the Constitution. The proper course, if there is genuine disagreement with Judge Ring's order, is to pursue an appeal to the High Court. I am told that this could be heard imminently.
21. There are many instances where, within jurisdiction, a court may fall into an error of interpretation or base its decision on a mistaken view of the law. This does not in consequence remove jurisdiction. There are legal structures in place to deal with such commonplace situations and these fall outside the obligation of the High Court to enquire into and to declare that a detained person is either lawfully detained or not. Many criminal trials, for instance, are reviewed by the Court of Criminal Appeal. Not infrequently, errors are uncovered which may result in a conviction being quashed, with a retrial being ordered in many cases. That retrial is expected to take place in the light of the clarification issued through the appeal process. If a trial judge in the Circuit Criminal Court trying a sexual violence case that was 20 years old failed to give the jury an appropriate warning related to the age of the complaint and the infirmities that might result for an accused attempting to construct a defence, that might well result in the conviction being quashed but it would not mean that the convicted person was in unlawful custody up to the time when his conviction was declared unsafe on appeal. A point of that kind might also be made in relation to a trial judge exercising her or his discretion not to warn the jury to take particular care in relation to unsupported sexual assault allegations. Again, on appeal, the conviction might not stand. Similarly, a contempt jurisdiction that is exercised within jurisdiction but based on an error of law or fact is properly the subject of an urgent appeal. Uncovering such an error, no doubt on appeal the supposed contemnor would be released.

22. The appellant argues that any distinction between error within jurisdiction and acting without jurisdiction does not apply in bail cases. It is impossible to agree. Although some legislation refers to the jurisdiction of the High Court as appellate, this is not correct. It is a full jurisdiction that is exercised de novo and can be invoked in any bail matter by either the accused or by the prosecution. The classic statement of the limitation of the circumstances in which the High Court should exercise its habeas corpus jurisdiction derives from The State (McDonagh) v Frawley [1978] IR 131 at 136. This is argued by the appellant to apply only where a person has been through a process of trial and has had the opportunity to exercise the full panoply of rights of fair procedures in that regard. That statement is not so confined:

      The stipulation in Article 40, s.4, sub-s. 1, of the Constitution that a citizen may not be deprived of liberty save “in accordance with law” does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded.
23. In The State (Royle) v Kelly [1974] IR 259 the applicant for habeas corpus had been convicted within a constitutionally defensible criminal process; the issue being the unavailability of his chosen solicitor and his decision to defend the case unrepresented. His application was dismissed by the Supreme Court. At page 269 of the report Henchy J made the following statement of principle:
      The mandatory provision in Article 40, s. 4, sub-s. 1, of the Constitution that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained “in accordance with the law” is but a version of the rule of habeas corpus which is to be found in many Constitutions. The expression “in accordance with the law” in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the test is to ensure that the detainee must be released if - but only if - the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.

      The expression is a compendious one and designed to cover these basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders a detention unjustifiable in the eyes of the law. To enumerate them in advance would not be feasible and, in any case, an attempt to do so would only tend to diminish the constitutional guarantee.

24. Considerable emphasis was placed in argument on the decision of Hogan J in Cirpaci v Governor of Mountjoy Prison [2014] IEHC 76. That was a case where the applicant had been through a criminal trial and had chosen instead of an appeal to seek the remedy of habeas corpus. It is not thereby established that a valid choice may be exercised by a party claiming a legal error in their conviction in favour of habeas corpus and away from appeal or judicial review. Central to that case was the complete absence of jurisdiction in the District Court before which that particular accused had pleaded guilty. There is a right to trial by jury pursuant to Article 38 of the Constitution in respect of non-minor offences. It had been well established in relation to this right since The State (Hastings) v Reddin [1953] IR 134 that the exercise of that right depended upon the judge informing the accused of that entitlement. That did not happen in the Cirpaci case. A fundamental want of jurisdiction in the court before which the plea was entered was thus established. Similarly, in The State (O) v O’Brien [1973] IR 50, habeas corpus was granted because a person under age was sentenced to a term of imprisonment in circumstances where that jurisdiction was not available to the Central Criminal Court. Another case where the order of detention had expired but the prisoner was still held was Sweeney v The Governor of Loughlan House Open Centre [2014] IESC 42. The want of legality in the detention in that case arose because although the applicant/appellant had been sentenced to 16 years imprisonment for drug offences in the United Kingdom, he had a legal entitlement to be released after 8 years under the law of that jurisdiction and to serve the balance of his sentence in the community: This was not given effect to in Ireland on his being transferred here pursuant to statute. By the time of that application, that sentence had expired. In FX v The Clinical Director of the Central Mental Hospital [2014] IESC 01, at issue was a two part hearing on a finding of unfitness to plead being made by the Central Criminal Court. At paragraphs 65 and 66, Denham CJ stated:
      65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach is to seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an application for judicial review may be the appropriate route to take. In such circumstances, where an order of the court does not show any invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not the appropriate approach.

      66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless there has been some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court, with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a fundamental denial of justice, or a fundamental flaw, such as arose in The State (O.) v. O’Brien [1973] 1 I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.

25. In this case any error made by the learned Circuit Court Judge was as to the construction of the order of the Court made up in ease of the appellant. Arguably, on revisiting that order the Judge was entitled to take a different view since the appellant had arrived home early from his Portuguese holiday. This did not require an application from either the prosecution or the defence; Rice v. Judge Mangan [2009] 3 IR 1. At all times, it had been the intention of the court seised with the trial of the offences against the appellant that while in Ireland he should be bound by stringent conditions attached to his bail. In the result, that is what happened albeit by a misconstruction of the existing order. That being so: this appellant then had an appropriate remedy. An immediate right to invoke the full and original jurisdiction of the High Court was open to him should it be considered that some possible advantage would be available to him on putting his circumstances afresh before that Court. Given the wide breadth of powers in respect of bail available to any judge of the court before which an accused is to be tried, and bearing in mind the ready availability of review in respect of any such order, it is difficult to conceive of circumstances when resort to Article 40 is either appropriate or necessary. The Circuit Criminal Court had jurisdiction to revoke bail. The order committing the applicant to prison is regular on its face and does not recite or refer to the order of the 19 June and does not require interpretation of that order to be effective. The instant case is not a matter for the remedy under Article 40.4.2º but appropriately is a matter for recourse to the bail list in the High Court.

Two-part hearing
26. It is further claimed that the learned Circuit Court Judge should have conducted a two-part hearing on the appellant being brought before her. The first part thereof, on this argument, would have been conducted on the issue as to whether the bail bond had been breached and, then, the second would have been initiated independently of that to enquire into whether bail was now appropriate and if so what conditions should have been attached thereto. The learned trial judge in the High Court dealt with this proposition in the following terms:

      No authority has been opened to me in support of this proposition and I disagree with it. My view is that the right to bail is fully addressed when the court fixes the conditions of bail. That decision balances the rights of the accused with the other interests which are to be protected. That process does not have to be repeated, save where fundamental circumstances change and where the court is urged to rebalance those particular interests. No argument has been advanced to me that fundamental circumstances regarding the balancing between the rights of the accused in this case, and the rights of the other public interests which are to be protected needs to be or ought to be recalibrated. Therefore, I reject the proposition that the approach to be taken by a judge on an application for revocation must involve both steps.

      The question before the court on a revocation application is 'what are the consequences which flow from a breach of condition of bail if found?' In a case such as this, where the accused elects not to tell the court about the circumstances in which bail was breached, the court must react to the breach, if found, and in the absence of any evidence from the accused, is entitled to assume that the breach is not irrelevant or de minimis or accidental. Revocation is a proper result in such circumstances. Evidence from the accused, where the breach was unintended, accidental or arising from a genuine misunderstanding, might, and probably would result in a benign reaction from the Bench to an alleged breach. But this was not the case and the court was not offered the assistance of the accused as to the circumstances in which bail was said to have been breached. I therefore reject these two arguments advanced in favour of the applicant by counsel.

27. That statement of principle is correct. To the views of the learned trial judge in the High Court might be added the observation that the appellant chose not to give evidence on being brought before Judge Ring in the Dublin Circuit Criminal Court. She therefore had no explanation as to why the appellant had come home early to Ireland, why he choose not to go to the place regarded as appropriate by her to reside pending his trial and why had he retained his passport. In argument on this appeal, this silence was incorrectly equated with a constitutional right. This is a startling proposition. A bail hearing is not a criminal trial. While an applicant for bail is not required to offer an explanation for anything, no more than any litigant, an evidential deficit resulting cannot be regarded as somehow the responsibility of the prosecuting authorities.

Error on the order of detention
28. The point that there was an error on the face of the order under which the appellant is now detained was not argued in the High Court, and no ground has been advanced which would entitle this court to address it. This court has, nonetheless, examined that order. It recites the name of the accused before the Dublin Circuit Criminal Court; it contains the relevant bill number; it gives full identification particulars; it records that the “accused has been remanded in custody”; it commands the respondent governor to receive the appellant into custody; and it is properly attested. There is no such defect.

29. In the result, this appeal will be dismissed and the order of the learned High Court judge will be affirmed.

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URL: http://www.bailii.org/ie/cases/IESC/2014/S53.html