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Cite as:  IESC 54
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Judgment Title: Ryan v Governor of Midlands Prison
Neutral Citation:  IESC 54
Supreme Court Record Number: 315/14
High Court Record Number: 2014 1025 SS
Date of Delivery: 22/08/2014
Court: Supreme Court
Composition of Court: Denham C.J., Hardiman J., MacMenamin J.
Judgment by: Denham C.J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 315/14
In the matter of Article 40.4.2 of the Constitution
Governor of Midlands prison
Judgment of the Court (ex tempore) delivered on the 22nd day of August , 2014, by Denham C.J.
1. This is an appeal by the Governor of Midlands Prison, the respondent/appellant, referred to as “the appellant”, from the judgment and order of the High Court (Barrett J.), which were delivered and made respectively on the 2nd July, 2014.
2. Edward Ryan, the applicant/respondent, is referred to as “the respondent”.
3. On the 2nd July, 2014, the High Court ordered that the respondent be released from detention forthwith, and that the appellant do pay the costs of the respondent, to be taxed in default of agreement.
4. The issue which came before the High Court was whether the respondent, a prisoner, continued to be detained lawfully by the State.
5. The respondent was sentenced on the 30th July, 2010, by the Circuit Criminal Court, to two concurrent sentences of six years imprisonment, to run from the 26th May, 2010. He was convicted of two serious offences, of being in possession of a high powered pistol and 15 rounds of ammunition, in suspicious circumstances, contrary to s. 27 (a) of the Firearms Act 1964, as amended.
6. The return made by the appellant certified the grounds for the detention of the respondent as being the warrant of the 30th July, 2010, of the Circuit Criminal Court.
7. The respondent’s release date, based on one quarter remission, is the 24th November, 2014.
8. By a letter dated the 3rd December, 2013, the respondent’s solicitor applied for the respondent to be granted one third remission under rule 59(2) of the Prison Rules, 2007. Under such remission his release date would be approximately the 26th May, 2014.
9. Both the approved and unapproved written judgments of the High Court have been considered by the Court, as have the written submissions filed on behalf of the parties.
10. At the hearing of this appeal the Court asked counsel for the parties to make oral submissions as to the appropriateness of the remedy of Article 40.4.2 to the application and position of the respondent.
12. The respondent then collaterally attacked his continued detention by urging that the Minister’s decision of the 16th April, 2014, was procedurally flawed. The question arises as to whether this attack is within Article 40.
13. The Court follows and applies the statement of law given in FX v Clinical Director of the Central Mental Hospital  IESC 01, where it was stated at paragraphs 65 and 66:-
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  1 I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.”
16. This is not a novel exposition of the law. In McDonagh v Frawley  IR 131 at 136 it was stated:-
19. This is not a case such as Cirpaci v Governor of Mountjoy Prison  IEHC 76, where there was a complete absence of jurisdiction in the District Court where he had pleaded guilty and not been informed of his entitlement under Article 38 to a trial by jury. Nor is it such a case as State (O) v O’Brien  IR 50, where a person underage was sentenced to a term of imprisonment in circumstances where that jurisdiction was not available in the Central Criminal Court. Nor is it similar to Sweeney v Governor of Loughan House Open Centre  IESC 42.
20. In the cases cited above there was an absence of jurisdiction.
21. Counsel for the respondent placed reliance on O’Brien v Governor of Limerick Prison  2 ILRM 349. However, the Court considers that the essence of O’Brien is that the judge could not impose a sentence without statutory remission and that therefore the sentence imposed and attacked was without jurisdiction. As was stated in O’Brien, at p 356:-
22. The Court considers that this is not a case such as Richardson v Governor of Mountjoy Prison  ILRM 82 where there was an issue of a prisoner suffering ill treatment. See also Cahill v Governor of Military Barracks 1980 ILRM 191.
23. The traditional remedy of Habeas Corpus, now subsumed in Article 40 of the Constitution, is the great protection of the citizens’ liberty. It protects our citizens from arbitrary detention and imprisonment without legal warrant, not to mention “disappearances” which, historically and now, are all too common in dictatorial regimes. The Courts must always enquire immediately into the grounds of any person’s detention, when called upon to do so.
But the fact that every person detained has a right to have the legality of his detention examined by the Superior Courts does not mean that such a person has a right to have every complaint he may have examined under the same extraordinary procedure.
The validity of Mr. Ryan’s detention under the order of the Circuit Criminal Court has not been challenged in these proceedings. But it is said that the failure to grant him enhanced remission of sentence is itself flawed. But the Minister’s decision in this regard is prima facie valid.
Mr. Ryan’s complaint about the procedures leading to the Minister’s decision may be examined by judicial review, and not under Article 40, for the reasons explained earlier in this judgment. The special and extraordinary features of the Article 40 procedure are not required for the examination of this complaint.
24. In this case the order of the Circuit Criminal Court shows no invalidity on its face, indeed it was not contested that it was a valid order.
25. Habeas Corpus is not the appropriate remedy for the issue of remission, as raised by the respondent.
26. Consequently, the return made by the appellant, the valid order of the Circuit Criminal Court, was sufficient upon which to detain the appellant.
27. The Court will allow the appeal.