S31 Finnegan v Superintendent of Tallaght Gards Station & anor [2019] IESC 31 (15 May 2019)

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Cite as: [2019] IESC 31

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Finnegan v Superintendent of Tallaght Gards Station & anor
Neutral Citation:
[2019] IESC 31
Supreme Court Record Number:
Court of Appeal Record Number:
Date of Delivery:
Supreme Court
Composition of Court:
Clarke C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., Finlay Geoghegan J.
Judgment by:
O'Donnell Donal J.
Appeal allowed
Judgment also delivered by McKechnie J
Judgments by
Link to Judgment
Clarke C.J.
O'Donnell Donal J.


Clarke C.J.
O'Donnell J.
McKechnie J.
MacMenamin J.
Finlay Geoghegan J.

- and -




Judgment of Mr. Justice Clarke, Chief Justice, delivered the 15th May, 2019

1. My purpose in writing this short concurring judgment arises from the fact that, while there is agreement from all of the members of the Court as to the correct result of this appeal, there are some slight differences of approach on which I feel that I should comment.

2. Both the judgments of O'Donnell and McKechnie JJ contain a very detailed analysis of the case law. I have nothing to add on that topic save to indicate that I agree that there are no cases directly on point and, insofar as a general principle can be determined, it is to the effect that there may be circumstances when it is not constitutionally proper to enforce an otherwise valid warrant or order for the committal of a person to prison.

3. Like O'Donnell J., I consider that the source of that principle lies in the fact that it is well established that the requirement that persons only be imprisoned "in due course of law" goes beyond compliance with formal legal provisions so as to incorporate overriding obligations of constitutional fairness. Against that background it is, in principle, possible that such constitutional requirements may, in very limited circumstances, override what would otherwise be the obvious obligation to enforce an order committing a person to prison after a trial in due course of law and, if invoked, any appellate process.

4. I would also agree with the other judgments and, in particular, that of O'Donnell J. to the effect that a very significant weight indeed needs to be attached to the fact that a person who is the subject of a valid warrant has been convicted and sentenced to imprisonment after a constitutionally fair process. It follows that the circumstances which could warrant determining that other considerations outweigh the imperative that the person concerned serves the period of imprisonment duly imposed would need to be very weighty indeed. It follows in turn that the circumstances where the Constitution would require that a warrant not be enforced would be correspondingly very limited indeed.

5. I agree that the factors which broadly need to be considered are as identified in the other judgments delivered in this case but would add that they require to be assessed against the backdrop of the requirement that there be very weighty considerations indeed before a court could countenance determining that an otherwise valid sentence should not be served. The fact that matters may not have progressed in an ideal fashion from the perspective of the State and/or the fact that there may be some prejudice to the person whose incarceration is sought would, in my view, fall well short of meeting the necessary threshold.

6. However, I would not be inclined to place any significant weight on the factor identified by O'Donnell J. towards the end of his judgment being the fact that a further period of the order of five years has elapsed during the currency of these proceedings during which period Mr. Finnegan has been released on bail. If it were not appropriate to determine, at the time when these proceedings were commenced, that the wholly exceptional circumstances which would warrant the non enforcement of an otherwise valid warrant were present, then I do not consider that the fact that it has taken some time for these proceedings to come to a final resolution could weigh significantly in the balance. In making that point I appreciate that, even if one took a different view as to how things stood at the time when Mr Finnegan's proceedings were commenced, his case was at least sufficiently strong to persuade the High Court to find in his favour. Nonetheless I do not consider that the mounting of proceedings which had the effect of delaying a final determination for a significant period of time could, in itself, significantly alter the assessment of whether the threshold has been met. Indeed, to place significant weight on that factor might encourage the bringing of proceedings in the hope that any extra delay thereby engendered might itself tip the balance.

7. For myself I would be content to adopt the overall test identified in the judgment of O'Donnell J. but to indicate that the analysis of the various factors properly taken into account in that test which is set out in the judgment of McKechnie J. persuades me that, at the time when Mr. Finnegan was arrested and these proceedings were launched, the threshold had already been passed so that this case comes into the rare and unusual exception to the general requirement that persons who are the subject of valid warrants for their imprisonment should serve a term of imprisonment in accordance with the terms of the warrant concerned. In those circumstances I would agree with the order proposed by McKechnie J.

Judgment of O'Donnell J. delivered the 15th day of May, 2019.

1 I agree, not without some hesitation, that the appeal herein should be allowed. I agree with McKechnie J. that there is a point at which culpable and inexcusable delay in executing a committal warrant, normally coupled with other factors, may mean that the arrest and detention of even an absconding prisoner can become unlawful. I also agree that that point has arrived when it can be said clearly that the arrest and detention is no longer the performance of the administration of justice, but rather has become so arbitrary and oppressive to the individual that it cannot be permitted. What is more difficult, however, is to determine at what point that is reached, particularly in the case of a person such as the applicant, against whom a warrant of committal has been lawfully executed and who has escaped from lawful custody.

2 For my part, I would not regard the decisions since Cunningham v. Governor of Mountjoy Prison [1987] I.L.R.M. 33 as applying some pre-existing principle of general application. Rather, I would see them as merely individual instances where High Court judges, and in one case a three-person formation of this court, considered that, in the particular and differing circumstances of individual cases, an arrest and detention was, or was not, lawful. This is, therefore, the first occasion on which a full formation of this court is invited to address the question as a matter of general principle applicable to all types of warrants. There is a relative dearth of considered authority in this jurisdiction and, it appears, in any comparable common law jurisdiction. It is accordingly a matter to be approached with some caution.

3 I do not find it particularly helpful to address the question as one of fair procedures in the abstract. Indeed, that approach may elide an important distinction, since it necessarily tends to focus upon the conduct of the gardaí and the process involved, and blur the distinction between efficiency and fairness. By and large, however, the question of the lawfulness of the behaviour of investigatory and prosecution authorities (and indeed prison authorities) is determined by law. That is illustrated by the fact that, however belated the enforcement of the warrant at issue here, by the time it was obtained by Tallaght Garda Station neither of the respondents (the Superintendent of Tallaght Garda Station and the Governor of Wheatfield Prison) had any discretion not to execute the warrant in the first place, or accept the applicant and detain him in prison on the other. As it stood, their lawful duty was to obey the warrant. There was no procedure to be adopted before the execution of the warrant, and it is not suggested by the appellant that any process, however elaborate, could render the arrest and detention lawful. The question is not the fairness of the procedure, but the lawfulness of the detention.

4 There is, in my view, no doubt that the issuance of a warrant is a command to the executive branch of the State to arrest an individual and bring him or her before a court, or as in this case, to lodge him or her in lawful custody. If the gardaí fail to do so promptly, without excuse, then that is a failure to perform an important public duty. But that duty is owed to the public at large, and not to the individual the subject of the warrant. In other words, the point at which a warrant ought to have been executed, and at which, moreover, it can be said that there has been a failure of the duty on the part of the gardaí or some other public authority, is passed long before it can be said that the subsequent execution of the warrant is so oppressive and arbitrary to the individual that detention pursuant to the warrant cannot be permitted.

5 It is in my view necessary to consider the decisions carefully. It appears that the present case raises for the first time the question of whether a prisoner who absconds from lawful custody may nevertheless be entitled to resist the subsequent arrest and execution of the committal warrant and his or her lodging in prison to complete the sentence originally imposed. It should be noted that absconding from lawful custody is in itself an offence at common law. No case cited to this court establishes the proposition that a return to lawful custody can be restrained or prevented in this jurisdiction. Nor have counsels' research brought to light any comparable case in any other common law jurisdiction. Considerable reliance is placed by the appellant on a handful of cases in this jurisdiction as establishing a general principle in relation to the execution of warrants, applicable to the particular circumstances in this case, where a person deliberately absconds from lawful custody. It is necessary to consider those cases to ascertain what was decided in them, and what perhaps may be deduced from them.

6 Cunningham v. Governor of Mountjoy Prison [1987] I.L.R.M. 33 appears to be the earliest case, and to some extent the foundational case. It is, however, a very short judgment running to no more than two pages, in which only one authority is cited, which itself is only of tangential relevance to the issue which arises in this case. Cunningham concerned temporary release under the Criminal Justice Act 1960. A short time previously, in The State (Murphy) v. Kielt [1984] I.R. 458, it had been established that some minimal fair procedures were required before a temporary release could be revoked for breach of a condition. This is perhaps logical, since an individual who has been released and is at liberty may not know that they have breached a condition of their release, still less that it is considered that such breach justifies a revocation of the temporary release, and may, moreover, wish to contest either the facts or present mitigating facts. It followed, however, that there were some procedures involved which were required to be fair, and it was a short step therefore to conclude in Cunningham that unexplained delay in exercising the process which had the effect of returning someone to prison (which, as McCarthy J. pointed out in The State (Murphy) v. Kielt , could perhaps occur many years after the original sentence had expired) may in certain circumstances breach the requirement of fair procedures. In Cunningham , the applicant had been released when serving a six month sentence for driving without insurance, and was granted temporary release after one month of the four which he could normally expect to serve, with a condition of his release that he attend a probation officer, as requested. The probation officer had notified the governor of the prison (and the respondent proceedings) that, in the following month, the applicant had not contacted her and was not at home on three occasions when she visited. The governor requested the gardaí to arrest the applicant and to return him to jail to allow a consideration of revocation of temporary release. However, the applicant was only arrested and lodged in jail seven months later, and, in relative terms, long after the original lawful expiry of the sentence.

7 In the High Court, Egan J. rejected arguments based on The State (Murphy) v. Kielt [1984] I.R. 458 as to the fairness of the procedures involved the arrest of the applicant, but did hold that the delay of seven months, which was unexplained, rendered unlawful the enforcement of the balance of the term of imprisonment. It is manifest that the decision does not establish any overarching principle, still less one applicable to the facts of the present case. Furthermore, temporary release is a unique process, giving rise to distinct issues and problems, as The State (Murphy) v. Kielt illustrates. It is often treated by most recipients as an effective release, and it may be considered, therefore, that issues of fairness arise when a sentence is reactivated without notice for an alleged breach. There are also questions of arbitrariness if, as may occur, in most cases a person released on temporary release is not the subject of any re-arrest or revocation process. It may be considered, therefore, that issues of fairness arise when temporary release is reactivated without notice for an alleged breach of its terms occurring sometime after the original sentence has expired. Unlike the present case, a person released on temporary release is entitled to be at liberty until some step is taken to revoke that release. It is apparent, however, that Egan J. considered the case to be one which, far from establishing a general principle, should be treated as a decision limited to its own facts. Accordingly, the penultimate paragraph encapsulates the essence of the decision:-

      "In my view the purported reactivation of the sentence after such a long period and with no explanation for the delay was unfair. I confine my view to the particular facts of the present case. Every other case must be judged on its own facts."

8 Long v. O'Toole [2001] 3 IR 548 occurred in the context of extradition law as it stood prior to the introduction of the European Arrest Warrant regime in 2003. In that case, the plaintiff in the proceedings, an Irish national, had been convicted of firearms offences in somewhat unusual circumstances. He was a passenger in a car which was stopped by police in Birmingham, following which the driver of the car was found to have guns strapped to his body. However, it appears the plaintiff was charged with offences under the Custom and Excise Management Act 1979 in connection with the export of the guns. The plaintiff was sentenced to seven years imprisonment. One year later he absconded from a remand centre while on temporary release. The plaintiff returned to Ireland and resided openly at his former address. There are therefore certain resonances with the facts of this case. It was almost five years later before warrants for his arrest were issued. Remarkably, the evidence established that the gardaí were aware that he was unlawfully at large, and on two occasions in 1994 had communicated with the United Kingdom police as to whether extradition was being sought. During that year, the United Kingdom authorities confirmed that the plaintiff was an escapee, and his extradition was "being considered". However, nothing was done until almost four years later, when the gardaí again enquired as to whether the plaintiff would be extradited, which, it appears, stimulated the extradition proceedings.

9 In the High Court, Kearns J. (as he then was) refused to make an order for extradition on the grounds that it had not been established that there was correspondence between the customs offence of which the plaintiff had been convicted and any offence in Irish law. With more relevance to the present case, he also considered that it was unjust, oppressive or invidious to order the extradition in the circumstances of the case.

10 There are clear similarities with the facts of this case, since a prisoner who absconded from prison was not ordered to be returned to serve the remainder of the sentence on grounds of the delay in issuing a warrant. Accordingly, it bears close examination. It is in, my view, important to observe at the outset that the legal context is somewhat different. The question of rendition by way of extradition to another country is not equivalent to prosecution or punishment for an offence within this jurisdiction. There are obviously important public policy considerations in both cases. However, when a person is convicted in this jurisdiction and sentenced to a term of imprisonment, their detention is the performance of the administration of justice pursuant to the Constitution. When, however, a person, particularly a national, who ex hypothesi has committed no offence against the law of the requested state, is nevertheless surrendered to another state, the interest being pursued is international comity. There is no doubt an important public policy involved, but it is not necessarily one which is commensurate with the policy involved in prosecution of persons for offences against the law of the requested state. For that reason, a number of countries, and in particular many European countries prior to the introduction of the European Arrest Warrant, had restrictive rules on extradition, including prohibitions on the extradition of their own nationals. It should not, therefore, be too readily assumed that a period of delay which might preclude extradition under the pre-2003 regime would have precluded prosecution for an offence in this jurisdiction. Indeed, the limitations of the decision in Long v. O'Toole [2001] 3 IR 548 are perhaps illustrated by the fact, that although he succeeded in resisting extradition, that did not provide immunity from serving the balance of the sentence imposed upon him. If the plaintiff had been found in the United Kingdom or indeed in any country with a different extradition arrangement, he could have been required to serve the balance of the sentence. The impact of the decision was merely that, while in Ireland, he could not be forcibly surrendered to the United Kingdom while the Extradition Act 1965 (as amended) ("the 1965 Act") remained in place.

11 The difference between the provisions applying to extradition, and those applying to prosecution in this State are illustrated by the fact that extradition under the 1965 Act was subject to a specific statutory prohibition, for which there is no equivalent provision precluding prosecution for an offence under Irish law. Section 50(1) and (2)(bbb) of the 1965 Act provided:-

      "50.—(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

      (2) A direction under this section may be given by the High Court where the Court is of opinion that—


      (bbb) by reason of lapse of time since the commission of the offence specified on the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47 […]."

12 It has been established that this section requires both a lapse of time, and other exceptional circumstances. If so, then having regard to all the circumstances, the court, or, it should be noted, the Minister, had power to refuse to deliver the person for extradition, if, having regard to all the circumstances, it was unjust, oppressive, or invidious to do so. In Long v. O'Toole [2001] 3 IR 548, Kearns J. found that there had indeed been a lapse of time, and, furthermore, that the explicit communication with the United Kingdom police and the consequent unexplained prosecutorial delay, constituted exceptional circumstances, and that accordingly it was unjust, oppressive or invidious to order surrender.

13 It is noteworthy in this regard that s. 50(1) and (2)(bbb) has been repealed by the European Arrest Warrant Act 2003, and, furthermore, that that regime operates on quite a different basis to the Victorian concept of extradition found in the 1965 Act. Under that regime, a lapse of time itself cannot be a ground for refusing surrender: see Minister for Justice and Equality v. Stapleton [2007] IESC 30, [2008] 1 I.R. 669, and Minister for Justice v. S.M.R. [2007] IESC 54, [2008] 2 IR 242.

14 It is apparent, therefore, that, whatever its superficial points of comparison with the present case, Long v. O'Toole [2001] 3 IR 548 cannot be treated as authority establishing a general jurisdiction restraining the execution of a warrant against an absconding prisoner in this jurisdiction solely on grounds of lapse of time, even when caused by obvious inefficiency on the part of the part of the prison or garda authorities. If anything, the lesson to be drawn from Long is at best a negative one. Unless the facts established could satisfy the test under s. 50(1) and (2)(bbb), it is certainly unlikely that such facts could establish a basis for prohibiting the execution of a valid warrant in respect of an order of imprisonment in this jurisdiction. However, it is does not necessarily follow that factors which might have satisfied s. 50(1) and (2)(bbb) would be a sufficient basis for restraining the execution of a valid warrant in this jurisdiction. It is of some relevance that the Oireachtas has never seen fit to provide any statutory equivalent to s.50(1) and (2)(bbb) setting a time limit for the execution of committal warrants. Finally, there is also an important factual distinction between Long and this case: the fact that Mr. Long was living locally in Dublin, and was available should extradition be sought, was expressly brought to the attention of the UK police. Their inaction in the face of this information was unexplained, and, moreover, suggested that they were, at least at some point, content that he should remain in Ireland. This was clearly a significant feature in finding that the statutory test had been satisfied. If police authorities and pick and choose what warrants to enforce, it would be both arbitrary and invidious.

15 Dutton v. District Judge O'Donnell [1989] I.R. 218 is another case turning on its own somewhat unusual facts. When a person who is convicted in the District Court appeals to the Circuit Court, and the Circuit Court affirms the conviction, a warrant can either issue from the Circuit Court (on the basis that it is a Circuit Court order), or the issuance of the warrant can be left to the District Court on the basis that it is the order of the District Court which is being affirmed. In the latter circumstances, however, Rule 198 of the applicable District Court Rules 1948 provided that when the form of appeal was returned to the District Court signed by the County Registrar, the District Justice should in any such case " forthwith issue the necessary warrant or warrants and take all further steps requisite for the execution of the conviction or order as confirmed or varied by the Circuit Court […]" (my emphasis). In Dutton , for reasons which were again unexplained, but must have involved either delay or failure on the part of the gardaí in communicating the dismissal of the appeal to the District Court, or, conceivably, delay on the part of the District Court in issuing the warrant, the delay was over a period of four and a half months in the issuance and execution of the warrant. The applicant in the proceedings and was successful in the High Court. Barron J. relied on The State (Brennan) v. Connellan (Unreported, High Court, Hamilton P., 17 June 1986), The State (McCormick) v. The Governor of Mountjoy Prison (Unreported, High Court, Barron J., 6 May 1987) and Cunningham v. Governor of Mountjoy Prison [1987] I.L.R.M. 33 as indicating that "delay in the exercise of 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." He agreed with the suggestion in Cunningham that there was some point at which the execution of a warrant would become impermissible and clearly considered that point had been reached in that case. Since the period of delay in this case was relatively short, and since Barron J. offered a principle of general application, the case deserves close attention.

16 First, the reference to delay in the execution of a power not being permitted to deprive someone of a constitutional right, is somewhat puzzling, if taken in the abstract and not related to the particular facts of the proceedings. There is a power (and it might be said a duty) of arrest and detention of a person pursuant to a warrant. That does not deprive anyone of a constitutional right. The constitutional right involved, or, as it is sometimes put, engaged, is the guarantee that no person should be deprived of liberty save in accordance with law. But the execution of a valid warrant is a classic example of a lawful deprivation of liberty. The unusual feature in Dutton v. District Judge O'Donnell [1989] I.R. 218, which perhaps prompted the observation of Barron J., was that the sentences imposed by the District Court (and affirmed by the dismissal of the appeal in the Circuit Court) were for detention in St. Patrick's Institution for a period of nine months. However, in the period between the District Court hearing and the hearing in the Circuit Court, the applicant was convicted of further offences and had not appealed those convictions or sentences. He had instead gone into custody commencing on 11 December 1987. The appeals came on for hearing on 18 January 1988. If, therefore, the warrants had issued forthwith on the dismissal of the appeals, as contemplated by the District Court Rules, the period of detention would have run concurrently with the detention which had already commenced the previous month. The delay of four and a half months would have had the effect of extending the period of detention by three and a half months. Looked at in another way, the applicant could have had an expectation of being free and exercising a constitutional right of liberty but for the delay in exercising the lawful power of arrest.

17 In considering whether any principle of general application can be drawn from Dutton v. District Judge O'Donnell [1989] I.R. 218, it is particularly noteworthy that Barron J. did not quash the warrants or indeed prohibit their execution, as is sought here. Rather, he considered that the "arrest of the applicant must be deemed to have taken place on the [date of the Circuit Court hearing] and he must be deemed to have been in custody on foot of those warrants as from that date" (my emphasis). Barron J. expressly found that the arrest (and therefore the detention on foot of that arrest) was lawful. This appears at p. 224 of the report in the final substantive sentence of the judgment which reads "[t]here will be an order that the arrest of the applicant was lawful and that it must be deemed to have taken place on the 18th January, 1988" (my emphasis). In effect, the applicant was put in the position he would have been in had the warrant issued as it ought to have - forthwith on the dismissal of the appeal - but no more.

18 On analysis, therefore, Dutton v. District Judge O'Donnell [1989] I.R. 218 does not establish any general proposition that the delay of four and a half months in executing a warrant of committal will render any subsequent and detention unlawful, even when there is subordinate legislation in the form of District Court Rules which requires the issuance of a warrant forthwith. The arrest (and detention) in that case was lawful. If it had not been for the fact that the delay had the effect of lengthening the cumulative detention beyond the sentence imposed (and, therefore, the period of overall imprisonment which it is to be assumed was intended by the respective judges) it does not seem likely that the delay would have had any consequence in law. Indeed, Barron J. was careful to distinguish the case from one where the applicant was on bail on all charges. If, therefore, the applicant had only been convicted of the offence that was the subject of the District Court conviction, and he appealed to the Circuit Court, there is nothing in Dutton to support the proposition that a delay of four and a half months in executing the warrant would render the arrest and detention unlawful.

19 This analysis also highlights the fact that what was central in that case, and what led to the unusual order which was made, was not the delay per se , but rather the effect it had in the particular circumstances of the case. It is easy to see why this is so. If it was possible to delay the issuance of a warrant of committal, then it would be possible for the gardaí and/or the District Court to take decisions which would have the effect of determining the length of sentence served by an offender (which is prima facie a matter of administration of justice by the court), and, in certain circumstances, would have the effect of rendering sentences effectively consecutive where the court had treated them as concurrent. Even if such a consequence was unintended, and simply the consequence of human error, it could nevertheless be properly labelled arbitrary and invidious, to borrow the language of s. 50(2)(bbb) of the 1965 Act. It is possible that another offender could have been dealt with in exactly the same way by the respective courts, but could find that because of delay, he or she would serve a significantly shorter period of imprisonment than the applicant in Dutton v. District Judge O'Donnell [1989] I.R. 218.

20 Dalton v. The Governor of the Training Unit at Glengarriff Parade [2000] IESC 49, (Unreported, Supreme Court, 29 February 2000) is a decision of this court, albeit a three person panel (Denham, Hardiman and McGuinness JJ.). It concerned a practice which was prevalent at the latter part of the last century where persons subject to conviction, particularly on summary disposal, and particularly where fines had been imposed, sought routinely to have the fines commuted by the Minister for Justice under the power contained in s. 23 of the Criminal Justice Act 1951 ("the 1951 Act"), in exercise of the power of commutation provided for under Article 13.6 of the Constitution. The practice of making routine applications for commutation was the subject of trenchant observations by Geoghegan J. in Brennan v. The Minister for Justice [1995] 1 I.R. 612, where he observed that it could only be in exceptional cases that it would be proper to set aside orders made by the courts which had been upheld on appeal and not challenged or set aside by judicial review. Dalton concerned a further and undesirable administrative development as a consequence of this practice, in that it appears that gardaí routinely withheld enforcement of fines, and any consequential orders of imprisonment in default of payment, if the petition process was in being.

21 The plaintiff, having been convicted in the District Court in fishery offences, was ordered to pay fines with a certain period of imprisonment provided in default. The plaintiff petitioned the Minister, which had the effect that the fines were not paid during the time fixed, and, accordingly, the default imprisonment component of the orders became effective. Eventually, some two years and nine months after the District Court hearing, and following the reissue of the warrants, the gardaí sought to execute the warrant for committal in default. The applicant was lodged in the training unit of Mountjoy Prison, and brought proceedings under Article 40 of the Constitution for an inquiry into the legality of his detention. The High Court (Morris P.) made an order directing that the applicant be released. The ruling was then appealed to this court.

22 The execution of warrants in summary proceedings, are the subject of detailed, and somewhat complex statutory regulations. Section 1(1) of the Courts (No. 2) Act 1991, provides that "in all cases of summary jurisdiction" a warrant for imprisonment for non-payment of a fine may be issued "not later than six months from the expiration of the time fixed by the said order for the payment […]". The District Court Rules permitted the reissuance of warrants, but the only basis expressed on the form provided for under the rules was that "after diligent search … the person … against whom the within warrant was issued cannot be found".

23 There were thus two plausible bases upon which the execution of the warrant in the case could be challenged against the background moreover of the unsatisfactory fine communion procedure. In her judgment Denham J referred with apparent approval to the decision in Cunningham v. Governor of Mountjoy Prison [1987] I.L.R.M. 33 and also the following statement by Barron J. in the The State (McCormick) v. The Governor of Mountjoy Prison (Unreported, High Court, Barron J., 6 May 1987):-

      "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 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 no ne 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."

24 There are clear echoes in this passage of the judgment of the same judge in Dutton v. District Judge O'Donnell [1989] I.R. 218. I would observe that the passage cannot be treated as authority that, because a commencement date is delayed, there is no certainty as to the sentence imposed. If this were the case, then a question mark would arise even in the case where the failure to execute the warrant was the result of evasion on the part of the defendant. In fact, it is, as I understand it, the practice of prison governors to calculate the term of a sentence and the earliest release dates when a prisoner is lodged with a warrant. Denham J. also referred to an observation made by Lynch J. in O'Driscoll v. Governor of Cork Prison [1989] I.L.R.M. 239 in dismissing a claim that delay and execution of a committal warrant meant that the warrant was invalid. Although the particular delay in the case was short, there was an unusual feature in the case in that the applicant had undertaken to surrender himself to authorities at a fixed time, at Cork Courthouse, and had done so, but the warrants were not ready and he was not taken into custody. While Lynch J. in the High Court refused the application, he stated "I am also satisfied that the warrants as drawn up and endorsed 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 there was no unreasonable delay on the part of the State authorities and the warrants were accordingly executed within a reasonable time". Denham J. held that the failure to execute the warrants for a period of two years and nine months meant that detention of the applicant was invalid, and the order of the President was correct. Hardiman J., in addition, would have ordered the applicant's release on the ground that the renewal of the warrant was invalid, since it stated a reason - the fact that the applicant could not be found - which was known to be false.

25 Once again, I do not think that Dalton v. The Governor of the Training Unit at Glengarriff Parade [2000] IESC 49, (Unreported, Supreme Court, 29 February 2000) can provide any general principle as to the question which arises here, which is a culpable failure to recapture a person who, having been committed to prison under a lawful warrant, has escaped from lawful custody. The statutory regime for the issuance of warrants after a summary trial, particularly for non-payment of a fine, is, moreover, a long way from the facts of this case. Apart from the unsatisfactory nature of the petition procedure itself, and the consequent non-execution of court orders, the fact that the petition procedure was in being meant that the time for payment of the fine had elapsed, and, when the petition failed, the applicant was subject to imprisonment. There were elements therefore of both arbitrariness and unfairness in cases like Dalton , in that the exercise of a lawful procedure provided under the 1951 Act, meant that the applicant was put in a significantly worse position, in that he was lodged in jail rather than satisfying the fines within the time fixed by the relevant court.

26 Of perhaps more direct relevance in another decision of a three person panel of this court (Geoghegan, Kearns, and Finnegan JJ.) in McCormack & Farrell v. Director of Public Prosecutions [2008] IESC 63, [2009] 2 IR 208, particularly since the judgment was delivered by Kearns J. who had been the trial judge in the High Court in Long v. O'Toole [2001] 3 IR 548. In each case, a bench warrant had been issued for the arrest of the applicant who had failed to attend court. The facts of Mr. McCormack's case will suffice to illustrate the issue involved. There, the individual garda involved had attempted to execute the bench warrants shortly after the issue of the bench warrant. Two years later, when she attempted once more to execute the warrant, she discovered it had been executed by other gardaí. The case was then resumed, there was further adjournments and delays, and a trial date was set in the District Court for 1 September 2005, which was then over three years since the applicant had been charged with the offence. The applicant brought proceedings to prohibit the further prosecution of the charges. In addition to the delay, the applicant relied in particular on certain interactions with local gardaí about the execution of the bench warrant. The High Court (Feeney J.) refused judicial review. The Supreme Court upheld the decision of the High Court. The court accepted that the gardaí were obliged to execute the warrants with expedition, to take reasonable steps to enforce warrants to ensure citizens were brought to court to answer for alleged offences, and to ensure a speedy and fair trial. Nevertheless, applying the developing jurisprudence of the Superior Courts in relation to delay cases, the court found that, while there had been culpable delay on the part of the prosecution authorities, there was no prejudice to the accused and a fair trial was possible.

27 I agree with McKechnie J. that this case touches only indirectly on the question of delay in execution of a bench warrant, since it was an application to prohibit a trial on grounds of delay. However, I do not think that the case should be entirely discounted in the present context. First, the question of bench warrants has always posed particular issues. A bench warrant is issued where either an accused person or a witness does not attend court when required to do so by law. While it is important that such warrants are executed, their significance can vary considerably. The warrant can be reissued, or in many cases a fresh warrant can be issued. In any event, the warrant is only issued to secure attendance at court. It does not follow, therefore, that a prosecution of the offence is necessarily dependent on an execution of the bench warrant. As a result, a considerable administrative problem has grown up in relation to unexecuted bench warrants. This has been the subject of detailed consideration by the Law Reform Commission in its consultation paper entitled Search Warrants and Bench Warrants (L.R.C. C.P. 58 - 2009) and in its subsequent report, Search Warrants and Bench Warrants (L.R.C. 115 - 2015). Both reports also consider the problems posed by the issuance of warrants for non-payment of fines. At para. 7.89 of the consultation paper, it is recorded that, as of December 2008, the Dáil was informed that 36,972 bench warrants had been unexecuted. The Commission decided against recommending a more elaborate process for constant review of unexecuted warrants based on the variety of circumstances that were involved, and the administrative costs and time that would be involved in such a procedure. It noted that the garda inspectorate was also addressing the issue.

28 While any warrant is a command issued to the gardaí by the courts which must be obeyed, I do not think that the considerations which apply in the case of bench warrants are necessarily equivalent to a warrant of committal, in particular the issues which arise when a committal warrant has been executed, and a person has absconded. If anything, the issues which arise in such a case are more akin to questions of delay and default in investigating a case, rather than prosecuting a case once it has been commenced.

29 McCormack & Farrell v. Director of Public Prosecutions [2008] IESC 63, [2009] 2 IR 208 additionally highlights the fact that the question of delay may also be considered in the context of trials. Clearly, where a trial can only occur with the attendance of an accused person, and such attendance can only be obtained by execution of a warrant, there is an area of significant overlap. As is apparent from McCormack & Farrell , the test the courts now apply is not merely to consider whether there has been a lapse of time, or culpable prosecutorial delay, but also whether the lapse of time or delay has been such as to demonstrate that a fair trial is not now possible. Delay is always an issue in such circumstances, given the difficulty of securing attendance of witnesses, the possibility that such witnesses will no longer be available, and the potential impairment of memory caused by the passage of time. It is, however, rare that culpable prosecutorial delay alone will be sufficient to lead to a prohibition of a trial, although obviously if there is significant delay it may be easier to establish the necessary prejudice. The underlying test, however, relates to the fairness of the trial. If justice cannot be administered, then a trial can be prohibited. This jurisdiction can usefully be compared with the very similar abuse of process jurisdiction which exists in England and Wales and in Northern Ireland, where a trial may be precluded if the delay, especially culpable prosecutorial delay, might render the proceedings an abuse of process. As has been observed in that context, the jurisdiction is not intended and should not be diverted into a procedure for disciplining investigating authorities or punishing inefficiency: see, for example, R. v. Derby Crown Court , ex p. Brooks (1985) 80 Cr. App. R. 164; Re DPP's Application [1999] NI 106; R. v. Norwich Crown Court [1992] 1 W.L.R. 54; and R. v. L.G . [2018] EWCA Crim 736.

30 The question of prosecutorial delay is relevant here, because the plaintiff could presumably be charged with the offence of escape from lawful custody. It is useful to consider, therefore, whether, on the existing jurisprudence, a plaintiff could succeed in obtaining prohibition of any such trial. If, as it seems, he would be unlikely to do so on the grounds of culpable delay alone, then a legitimate question arises as to why the same delay could prevent the execution of an original warrant of committal, when there is no impact on a trial process, and indeed no procedures involved at all.

31 I agree with McKechnie J., therefore, that none of the cases cited are similar to the facts. It is perhaps necessary to make reference also to the decision in Buckley v. Hamill [2016] IESC 42, [2017] 1 I.R. 227. There, this court (MacMenamin, Laffoy and O'Malley JJ.) had to consider the question of renewal of summonses ordering imprisonment in default of payment of fines in respect of a series of minor road traffic matters. In each case, the warrants had been reissued on two occasions. Although Dalton v. The Governor of the Training Unit at Glengarriff Parade [2000] IESC 49, (Unreported, Supreme Court, 29 February 2000) does not appear to have been cited to the court, the court concluded that it was a prerequisite to the renewal of a warrant that it had not been executed because the person could not be found. Where a court was not satisfied of that fact, the application ought to be refused. The court also referred to the judgment of the Supreme Court in The State (McCarthy) v. Governor of Mountjoy Prison (Unreported, Supreme Court, 20 October 1967; reported as an appendix to Healy v. Governor of Cork Prison [1998] 2 I.R. 93). The question was considered of reissuance of an original warrant outside the time and without default on the part of the party executing the order. Ó Dálaigh C.J. said:-

      "[t]he purpose of the warrant is to execute the court's order; the bailiff's default is a matter between the court and the bailiff, and ultimately between the bailiff and the bailiff's superiors. But the court's duty and powers to see its orders are executed can be in no way dependent upon the default of a third party. The party against whom execution has not yet been made suffers no hurt: rather has he enjoyed what can be described as an unwarranted respite. A new warrant will be appropriate where the original warrant has been destroyed or lost, and also, though not necessarily so, where a new bailiff is chosen. But in all cases reason and principle, economy and dispatch, indicate that the original warrant should be reissued." (Emphasis added).

32 The starting point of the analysis must be, therefore, that in the case of a committal warrant such as that involved in this case, there has been an adjudication by a court established under the Constitution, and the administration of justice now requires that the individual concerned should be imprisoned. A heavy weight must be accorded to that. Indeed, at the time of the issuance of the warrant after conviction, there can be no countervailing factor: it has already been determined that the administration of justice under the Constitution requires the execution of the warrant, and the detention of the individual. Accordingly, it would normally require a number of substantial factors to be present to outweigh that consideration sufficiently to mean that the warrant should be quashed by a court. That would in my view be in exceptional. A person who escapes from lawful custody, and who is necessarily fully aware of that fact, can normally have no other expectation but that they may be rearrested, required to serve the balance of the sentence, lose remission, and be subject to prosecution for the serious offence of escape from lawful custody. The primary reason why the warrants issued by the court have not been fully executed and the sentence served is the wrongful act of the applicant in absconding from prison, and, moreover, not surrendering himself at any point thereafter. It will therefore be a considerable time before mere delay, garda inactivity, error, or even incompetence, could lead such a person to believe that they are being treated unfairly when they are rearrested. Although not debated on this appeal, it may be that a conclusion that the warrant cannot be executed, and should be quashed, would have implications for the question of damages, and moreover for capacity to prosecute for the substantive offence of escaping from lawful custody. If this be so, and I offer no view upon it, it is a further reason to approach this issue with considerable caution. There are, as McKechnie J. observes, a number of factors which must be considered, and error by reason of default, lassitude, inactivity, or incompetence on the part of the authorities is only one such factor. Well-founded frustration with such errors should not be permitted to distort the assessment of the issue, or lower the threshold which must be passed before a court could quash a committal warrant on the grounds of delay.

33 Among the factors which may be relevant may be the nature of the original offence, the length of the sentence imposed, the length of the sentence which is served, and the nature of the escape from custody (including whether it was premeditated or planned and executed with others, and whether force was involved). Thereafter, it will also be relevant whether the person resumed a normal life, or attempted to evade capture. It is important to distinguish the different ways in which this factor may be relevant. Living openly at the same address is certainly relevant to the question of culpable delay. It would not normally be of significant weight on the question of arbitrariness or injustice however unless it could be shown that the relevant authorities were aware of the fact and had refrained from executing, or simply failed to the warrant. It may also be relevant whether the life resumed is a law-abiding one, and whether the person has established family relationships which will be significantly disrupted by his re-arrest and imprisonment. It is impossible to attempt to allocate the weight that should be accorded to each of these factors, but it must be plain that it will normally be necessary that nearly all the factors should weigh heavily in favour of the individual before the presumption in favour of execution of a lawful warrant, the enforcement of which has been interrupted and prevented by the unlawful act of the individual, could be overcome as a matter of constitutional law.

34 Here, it must be said that some factors are present which can be said to favour the applicant. The offence was a summary offence, albeit that the sentence indicates that it was not a trivial one. He had served a significant portion of the sentence both after the original imprisonment, and when regard is had to the time served during the period between his re-arrest and the making of the application to court. His escape was effected simply by walking out of prison, in circumstances where it may perhaps be inferred that he had a concern about his brother's welfare. Certainly, it is not suggested that there was any plan or coordination with others, still less the use of force. As McKechnie J. points out, he almost immediately resumed his life at that same address, and can be said to have been living in plain sight. He claims he resumed claiming social welfare, and remained living within the same area, and had a second child with his partner. However, this cannot be equated to the circumstances which arose for example in Long v. O'Toole [2001] 3 IR 548. The gardaí in Arklow did not know that the applicant was in Tallaght. The gardaí in Tallaght did not know that he was wanted by the gardaí in Arklow. There is no sense in which there was acquiescence by gardaí, who, knowing where he was resident, that he had planned his escape from lawful custody, and was wanted to serve the balance of the sentence, did not execute a warrant.


35 I cannot agree with the High Court judge that there is any general principle which applies equally, for example, to bench warrants issued in the District Court consequent on non-payment of fines for summary offences, and the circumstances which have arisen here. The case law only establishes some individual circumstances, which are factually and legally distant from the situation in this case, in which the detention of a person pursuant to different warrants in different circumstances may no longer be lawful. Furthermore, I do not consider that this can be treated as a breach of fair procedures. There was no process underway which was obliged to be fair. The appellant, for example, had no right to be notified to make representations on his own behalf, or to invoke the principles of audi alteram partem or nemo judex in causa sua which are the well-known features of fair procedures. The analysis of the constitutional issue involved may be of more than theoretical interest. If it is considered as an aspect of fair procedures (even in the absence of any procedure or process) then the issue rapidly becomes one of generalised "fairness" which invites the type of untrammelled discretion that has been rightly criticised as unpredictable and subjective. In my view, the correct analysis is that the appellant was arrested and detained pursuant to what were, on their face, lawful warrants. The appellant has a constitutional right to liberty, of which he could be deprived save in accordance with law. Prima facie , warrants issued by a court requiring his detention to serve a sentence of imprisonment are lawful justification for the deprivation of liberty. However, as has been observed, when the Constitution speaks of a right being qualified or limited "in accordance with law", it will not be sufficient to point to formal compliance with the provisions of some regulation or provision. Rather, as observed by Henchy J. in King v. Attorney General [1981] I.R. 233, at p. 257, any such law must itself comport with the values which the Constitution embodies. Accordingly, a detention which is prima facie valid and justifiable may become unlawful if the circumstances are such as to render it arbitrary and oppressive. In the same way, conditions of detention in prison, even pursuant to a lawful warrant, may be such that the detention of the prisoner is unlawful: see The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82. This is an application of the general principle expressed by Henchy J. in The State (Royle) v. Kelly [1974] I.R. 259 at p. 269 that the expression "in accordance with the law" in the context of Article 40.4 "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 even-handed, dispassionate application of the law is central to the idea of justice, and where a punishment by detention becomes arbitrary, whether by the whim of an administrator, or as a consequence of inactivity and incompetence, it may be wanting in a fundamental attribute which, under the Constitution, should attach to any such detention. Given the fact, however, that the execution of the orders of a court is normally a requirement of the administration of justice, something substantial and more than delay and inefficiency - however worthy of criticism - is required before it can be said that the point has been reached that a detention in accordance with an otherwise valid warrant is unlawful.

36 If a principle is to be deduced from the case law which is capable of encompassing this case, it is the entirely general one that there must come a point where the interests of justice may lean against the enforcement of a valid warrant. While I agree that there are circumstances where it would be no longer lawful to detain a person who had escaped from lawful custody, I remain of the view that such circumstances must be exceptional, and the considerations leaning against enforcement of a court order must themselves be exigent, so that it could be said that detention pursuant to a warrant is so arbitrary and invidious as to no longer be the administration of justice. The fact that a majority of this court might consider that the circumstances here are such as to render detention unlawful is itself a weighty consideration. With great respect, I would not myself consider that the basic error made here in failing to place the fact of the applicant's absconding on the PULSE system, even coupled with the length of time which passed before the applicant was detained, would reach that point. Accordingly, I would uphold the decision of the Court of Appeal on the analysis of delay in this case. However, there are particular and additional features in this case which also require to be considered now. The applicant was convicted of the original offence on 19 November 2008. He left Shelton Abbey on 31 October 2009. While the legal argument in this case has focussed on the delay of four years and seven months between 1 November 2009 and 1 June 2014, five more years have elapsed during which the appellant has been at liberty, and, moreover, in circumstances where his claim succeeded in the High Court. The issue of principle having been resolved, it would, I think, be invidious to return the appellant to prison at this stage. In those circumstances alone, I would set aside the decision of the Court of Appeal.

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