THE HIGH COURT
Geoghegan J.
Kelly J.
Smyth J.
							                     Record No. 2009 SS/1996
IN THE MATTER OF AN APPLICATION FOR AN INQUIRY UNDER ARTICLE
40.4.2 OF THE CONSTITUTION
AND IN THE MATTER OF AN APPLICATION UNDER THE HABEAS CORPUS (IRELAND) ACT, 1781

BETWEEN
MICHAEL HEGARTY
									APPLICANT
AND
THE GOVERNOR OF LIMERICK PRISON
									RESPONDENT
AND 
THE MINISTER FOR JUSTICE, THE COMMISSIONER OF AN GARDA
SIOCHANA, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND
AND THE ATTORNEY GENERAL
									NOTICE PARTIES

Judgment of Mr. Justice Geoghegan delivered the 26th day of February, 1997.
	The Applicant has applied for this Article 40 Inquiry with a view to establishing that he is currently in the unlawful custody of the Respondent.  The Respondent detains the Applicant in purported pursuance of a Committal Warrant issued by the Special Criminal Court.  It is common case that there is no defect on the face of the Warrant but the Applicant claims that the Warrant relates to charges made before the Special Criminal Court following upon both a conspiracy unlawfully to deprive the Applicant of his constitutional right of liberty and an unlawful arrest which was itself a deliberate and conscious violation of the same constitutional right.  The Respondent and the Notice Parties maintain that the Applicant is in lawful custody pursuant to the said Warrant.  The circumstances in which the Applicant makes his claim are highly unusual and can be summarised as follows.  

THE FACTS
	The Applicant was arrested on the 10th November, 1995 under Section 30 of the Offences Against the State Act, 1939 and brought the following day before the Special Criminal Court where he was charged with unlawfully possessing explosives.  It is not in issue in this case that he was lawfully charged before the Special Criminal Court on that occasion. There were then a number of lawful remands culminating in a remand to the 15th October, 1996.  On that date a further Committal Warrant was purportedly made by the Special Criminal Court.  In fact the Court was not properly constituted in that His Honour Judge Dominic Lynch, a Judge of the Circuit Court, sat as a member of it on that day notwithstanding that he was no longer a member of the Court having been removed (at his own request) by the Government as a member of that Court on the 1st August, 1996.  Neither Judge Lynch nor the other two Judges who were lawful members of the Court or the Registrar of the Court or the Director of Public Prosecutions or anybody connected with the case had any knowledge that Judge Lynch was no longer a member of the Court.  The removal of Judge Lynch from the Special Criminal Court was gazetted in Iris Oifigiuil on the 9th August, 1996 but this notice had not been read by any person relevant to the proceedings involving the Applicant in the Special Criminal Court.  It is not necessary or relevant to set out in this Judgment the steps or lack of steps which were taken to promulgate the Government decision for the removal of Judge Lynch.  Nor is it necessary to review the letters passing from the Attorney General to the Department of Justice as a consequence of the Attorney General becoming concerned lest Judge Lynch had sat on the Special Criminal Court after being removed.  It is accepted that all persons relevant to the proceedings against the Applicant in the Special Criminal Court were ignorant of the removal of Judge Lynch or the effect thereof on those proceedings until the 6th November, 1996.  I will briefly outline the circumstances under which matters came to light on that day.
	On that date the Minister for Justice, the Director of Public Prosecutions and the Attorney General became aware that the Committal Warrant under which the Applicant was then held in Limerick Prison had been made by a Special Criminal Court not properly constituted.  As a consequence, the Minister made a decision later than evening for the release of the Applicant from Limerick Prison and in accordance with instructions the Governor released the Applicant.  The Director of Public Prosecutions having been made aware of the possibility of an impending release, directed the Garda Siochana to arrange in such an event for a common law arrest of the Applicant following upon his release and that he be charged again before a properly constituted Special Criminal Court on the same charges on which he had previously been before the Court.  These events came to pass and the Applicant is at present detained pursuant to a Committal Warrant in respect of the substituted though identical charges.  The Applicant argues that the re-arrest for the same offences was unlawful and an abuse of the process of the Court but he goes further and alleges a conspiracy between the Respondent and each of the Notice Parties to deprive him of his constitutional rights.  
	In the light of these arguments it is important to consider the activities of the relevant organs of State on the 6th November, 1996 under separate headings.  I will therefore separately deal with the Chief State Solicitor's office, the D.P.P.'s office, the Department of Justice, the Governor and staff of Limerick Prison and the Garda Siochana.

The Chief State Solicitor's Office
	I start with this office because it was there that the problem was first appreciated.  As a consequence of conversations within the office, the details of which it is unnecessary to recount, Mr. Brendan Counihan the Solicitor in the office in charge of the Special Criminal Court prosecutions began to have some concerns relating to the status of Judge Lynch on the evening of the 5th November, 1996.  He requested information from the Registrar of the Special Criminal Court, Mr. Morrissey.  The latter telephoned him back at 4.20 p.m. on the 6th November informing him that he had obtained a copy of an extract from Iris Oifigiuil confirming the removal of Judge Lynch from the Special Criminal Court.  At 4.30 p.m. Mr. Counihan telephoned Mr. Barry Donoghue of the D.P.P.'s office to inform him of the problem.  A faxed copy of the Iris Oifigiuil was not available until about 5.15 p.m..  In the course of telephone conversations between Mr. Counihan and Mr. Donoghue, it was agreed between them that the validity of all Orders made by the Special Criminal Court which included Judge Lynch since his removal were in doubt.  Mr. Donoghue was informed by Mr. Counihan that the Applicant was on remand pursuant to one of the doubtful Orders and that there was a scheduled sitting of the Special Criminal Court at 11.00 a.m. on the following morning.  Mr. Donoghue took the matter up from there.

The Office of the D.P.P.
	The earlier role of Mr. Donoghue has already been outlined.  Following on receipt of Mr. Counihan's information, Mr. Donoghue passed it on to the D.P.P. himself.  He also telephoned Mr. Noel Synott, the Principal Officer in charge of the Courts Division in the Department of Justice, who confirmed that Judge Haugh had been appointed to the Special Criminal Court in substitution for Judge Lynch.  The significance of this is that there had been an assumption in some quarters that Judge Haugh had replaced Judge Buchanan, a recently retired Circuit Court Judge.  When Mr. Donoghue had marshalled the relevant facts, the D.P.P. himself contacted the office of the Attorney General.  In discussions between the D.P.P. and Mr. Jim Hamilton, Senior Legal Assistant in the office of the Attorney General, the Director made it clear that in his view the continuing custody of the relevant remand prisoners was a matter for the Minister and the prison Governor and that it was not appropriate for his office to give "formal" advice to the Department on the matter.  
Mr. Hamilton concurred with this opinion.  
	The significance of the word "formal" was probed by Counsel for the Applicant.  I am satisfied, however, that the only reason that that word was used was because at some stage the D.P.P. had informally expressed the view that as the prisoners were remand prisoners they ought not to be released by executive order but only under Order of a Court.  Indeed this point was debated before this Court and I will return to it later.
	It is quite clear, however, that the Minister for Justice and the Department took all decisions on foot of advice from the Attorney General and his office and did not in any way act on the advice of the D.P.P. or his office.  
	On the other hand the D.P.P. from the moment that he realised that there might be a release, applied his mind to the problem of how in that event he could still effectively prosecute the released prisoners for the offences for which they had already been charged.  As mentioned, the D.P.P. decided that if released the prisoners should be arrested at common law and brought before a lawfully constituted Special Criminal Court to be charged with the same offences and to the intent that the new repeat charges be treated as substituted charges.  The necessary instructions were given to the Guards at some time between 6.30 p.m. and 7.00 p.m..  As will become clear, everything happened according to plan.  The role of the D.P.P. does not stop at that point however.  The Secretary of the Department of Justice, Mr. Tim Dalton, first learnt of the problem when travelling that evening in a car from Baldonnell Airport to where he had flown following on talks all day in Belfast in the company of the Minister for Justice.  Mr. Dalton telephoned the D.P.P. at about 7.20 p.m..  I accept his evidence that the purpose of this call was to obtain information.  Its context will become clear when I outline the role of the Department of Justice.  It seems that the D.P.P. reiterated to Mr. Dalton the view he had already expressed to Mr. Hamilton that as the matters in issue concerned the validity of a Court Order and not an imperfection in the criminal trial, the proper source of advice was the Attorney General's office.  It would seem probable to me that the D.P.P. would have indicated to Mr. Dalton his planned intentions in the event of there being a release.  Mr. Dalton, however, thinks not and I accept his bona fides.  It is immaterial, in my view, whether the D.P.P.'s intentions were conveyed at that time to Mr. Dalton or not.  It would be perfectly natural if they were.  Following on these early discussions, Mr. Dalton had no further personal contact with the D.P.P..

The Department of Justice
	The root cause of the problem was the failure of the Department of Justice to notify Judge Lynch himself or the Registrar of the Special Criminal Court or any other relevant person of the removal of Judge Lynch as a member of the Special Criminal Court.  The lamentable catalogue of errors which led to this state of affairs are all contained in what is now known as the Cromien Report.  But the result was that until Mr. Synott received the telephone call from Mr. Donoghue on the afternoon of 6th November, the relevant officers of the Department were blissfully unaware of any problems relating to the validity of Special Criminal Court Orders.  
	Once Mr. Synott was alerted on that day, he immediately took all reasonable steps to obtain appropriate advice as to what was to be done.  Unfortunately, both the Minister and the Secretary were at talks in Belfast.  But discussions ensued between himself and Mr. Hughes, the Acting Assistant Secretary, to whom he reported and another experienced Assistant Secretary, Mr. Val O'Donnell.  It was decided to obtain advice from the Attorney General's office and to procure precise details regarding cases heard by Judge Lynch.  While this advice and information was being awaited the scene changes to the car already referred to in which Mr. Dalton and the Minister's private Secretary were returning from Baldonnell Airport.  Mr. Dalton received a call on his mobile telephone from Deputy Commissioner Conroy of the Garda Siochana.  The Deputy Commissioner told him of the instructions he had received from the D.P.P. as to the re-arrest of the prisoners in the event of their being released.  He outlined to the Secretary the problem resulting from the removal of Judge Lynch.  There is some conflict between the Affidavit evidence and the oral evidence of Mr. Dalton as to whether in this telephone conversation which was at 6.50 p.m., the Deputy Commissioner indicated to Mr. Dalton that he was making arrangements to have Gardai in place in case if it became necessary to bring prisoners to Court or to another location or whether he indicated he already had the Gardai in place.  I believe that the discrepancy arises from faulty recollection and nothing more sinister than that.  I am inclined to accept the Affidavit evidence as being more reliable, both on the grounds that it was sworn nearer to the events and on the grounds it is inherently more likely.  But I wholly reject the inference drawn by Counsel for the Applicant that Mr. Dalton deliberately delayed matters after that conversation so as to enable the Garda arrangements to be put in place.  I am satisfied that the evidence does not support any such allegation. 
	After the telephone conversation between the Secretary and the Deputy Commissioner of the Garda Siochana, the Minister's private secretary who had partly overheard it, informed Mr. Dalton that correspondence had been received from the Attorney General regarding Judge Lynch's position.  I accept Mr. Dalton's evidence that that was the first time that he had heard of any such correspondence.  Mr. Dalton immediately telephoned Mr. Synott for information.  The true nature of the problem was then explained to him by Mr. Synott.  
	I have already referred to the telephone call made by Mr. Dalton to the D.P.P. at 7.20 p.m..  After that call Mr. Dalton, with some difficulty, succeeded in making contact with the office of the Attorney General.  He spoke to Mr. Hamilton who indicated that his advice was that the men should be released but that this advice would have to be approved by the Attorney General.  At 9.44 p.m. exactly, Mr. Hamilton telephoned Mr. Dalton and informed him that the Attorney General advised that the men should be released.  Immediately upon receipt of that advice, Mr. Dalton consulted with officials in the Department concerned with the Prisons Division, as there were obviously staff and other problems involved in the release of prisoners at night, particularly in Portlaoise jail where all but two of the prisoners were held.  The Applicant being one of the two was held in Limerick Prison.  Mr. Dalton also attempted to contact the Minister which he succeeded in doing at about 10.30 p.m..  She made a decision for release.  If Mr. Dalton had not been able to find her he would himself have made that decision.  
	Mr. Dalton then by telephone requested Deputy Commissioner Conroy to inform him when people had been released and as to whether they had been re-arrested or not.  The Secretary made it clear in evidence that he had not expressed any disagreement or disapproval of this course of action. 
	At about the same time as the Secretary was contacting the Minister, Mr. Aylward, Principal Officer in charge of the Prisons Division in the Department, contacted the Respondent and informed him of the problem but no instructions to release the Applicant were given at that stage.  At approximately 11.40 p.m., the Respondent was apparently informed by Superintendent Kennelly of the Garda Siochana that he had instructions that the Applicant was to be re-arrested on release.  The Respondent, after difficulty, made contact by telephone with Mr. Aylward who then instructed him to release the Applicant.

The Role of the Governor and Prison Staff
	Upon receiving this instruction from Mr. Aylward, the Respondent instructed Assistant Chief Officer Clifford of his staff to release the Applicant forthwith with all his properties.  With a view to maintaining the security of the prison, the Governor further instructed Mr. Clifford to escort the Applicant to the perimeter of the prison by having him handcuffed to a prison officer.  There were apparently no staff on duty at the front of the prison at night time and the main gate and the outer gate had to be unlocked to facilitate the Applicant's release.  Mr. Clifford was instructed to remove the handcuffs at the perimeter of the property and was informed that the Applicant would probably be arrested by the Gardai after his release.
	Mr. Clifford duly reported back to the Governor at 12.15 a.m. that the Applicant had been released but that when the handcuffs were taken off, the Applicant had tried to push his way back further in to prison property and that prison staff had ushered him onto the public footpath where he was then arrested by Gardai.
	It was suggested to the Respondent on cross-examination that as the Applicant had not been given his valuables such as his watch and money he was not genuinely released.  But the Respondent stated that it was standard procedure that in the case of releases after office hours, the prisoner is told to return the following day to collect his valuables.  It is not necessary to make any comment on this evidence.  If a prisoner is escorted out of a prison and freed, that is a release irrespective of whether he is given his belongings or not.
	There are differences in the accounts given by the State witnesses and the account given by the Applicant himself as to how exactly the purported release took place.  I have come to the conclusion that it is not necessary for any purpose connected with this case to resolve these differences.  The State evidence is that the handcuffs were removed from the Applicant about mid-way between the two gates of the prison.  Furthermore, it was the evidence of Detective Inspector Kerin that at least a minute elapsed between the taking off of the handcuffs by the prison officer and the putting on of handcuffs again by the Gardai following on re-arrest.  The Applicant on the other hand has alleged that the handcuffs were taken off very close to the outer gate and not halfway between the two gates.  He also says that he was re-handcuffed contemporaneously with the re-arrest.  I prefer the evidence of Detective Inspector Kerin that the handcuffs were put on by the Guards at a later stage. What clearly seems to have happened was that the Applicant refused to exit the prison until he received his money and that force had to be used and was used by the prison officers to eject him from the prison.  This force took place after the Applicant was released.  In my view, the release occurred when the handcuffs were removed at some stage before reaching the outer gate.  I therefore reject the view that the Applicant was never released.

The Role of the Garda Siochana
	In the course of dealing with the roles of other departments of State, I have indicated the nature of the initial contacts with the Guards and the instructions given by the D.P.P. for the re-arrest of the prisoners if released and their being brought before the Special Criminal Court.  It is not necessary to go into precise details of all the Garda evidence relating to the implementation of these instructions.  It is sufficient to state that arrangements were put in place promptly in Limerick with a view to ensuring the re-arrest.  There are differences between the Applicant's evidence on the one hand and the Garda evidence on the other hand as to how the re-arrest was achieved.  It was the evidence of Detective Inspector Kerin that he went to Limerick Prison at 11.35 p.m. accompanied by Detective Sergeant Haugh and other Gardai.  He waited outside the prison until the Applicant was released.  He described how at 12.11 a.m. on the 7th November the Applicant came out of the prison and stepped onto the footpath at Mulgrave Street.  Detective Inspector Kerin then put his right hand on the Applicant's shoulder and informed him that he was arresting him at common law for felony to wit the unlawful possession of explosive substances and gave him particulars.  It is not in dispute that the Detective Inspector had the necessary pre-requisite reasonable grounds of belief.  The Applicant was cautioned but made no reply.  Again, it is not disputed that the Applicant was then brought to the Bridewell in Dublin and from there to the Special Criminal Court to be charged before it.  As appears from the transcript before that Court which was put in evidence, the Garda version of events is that at the time of the re-arrest, Detective Inspector Kerin was accompanied by about twelve other members of the force and that there were four Garda vehicles but not in any particular formation.  Under cross-examination in this Article 40 Inquiry, the Detective Inspector conceded that the vehicles were positioned in such a way that the Applicant could not make a dash or escape once he had stepped onto the footpath.  The Detective Inspector said that there were four prison officers standing inside the outer perimeter fencing of Limerick Prison who did not at any stage come onto the public street.  About eight or nine of the Guards were out on the street while the others remained in the vehicles.  The Detective Branch members were armed but not visibly so.
	The relevant differences in the Applicant's account of the re-arrest are that the Applicant maintains :-
(1)	That at the time of the re-arrest his hand was being held by a prison officer.
(2)	That the Applicant was re-handcuffed contemporaneously with the re-arrest.  
The allegation that at the time of the re-arrest the Applicant's hand was being held by a prison officer was made in oral evidence at the hearing but it was never alleged in the Applicant's affidavit.  If it was true, I believe that it would almost certainly have been included in the affidavit.  I therefore accept the Garda evidence that this allegation is wholly untrue.  I reject the second allegation also.  I am satisfied on the evidence that the handcuffs were originally removed at some stage before the Applicant reached the outer gate, that he was reluctant to leave the prison without his belongings and had to be more or less pushed out by the prison officers but once out of the prison property he was immediately arrested in the manner described by Detective Inspector Kerin and that even at that stage he was not immediately re-handcuffed but this was done a moment or two afterwards.  I would find as a fact that the Applicant was released.
	In accordance with instructions, the Gardai ultimately brought the Applicant to a properly constituted Special Criminal Court where he was recharged on the same charges which in turn were then treated as substituted charges.  It is quite clear that subsequent remands relate to these substituted charges.  The Applicant is currently in detention pursuant to one such remand.  

THE LAW
	At the hearing of the Article 40 Inquiry Counsel for the Applicant argued the case for his release essentially on three grounds which to a considerable extent overlapped with each other.  These are:-
1.	An alleged conspiracy between the Notice Parties or some of them, their servants or agents to infringe the Applicant's constitutional right to personal liberty by planning to take steps with a view to concocting a release of the Applicant from the Respondent's custody but ensuring at the same time that the Applicant would never actually be given his liberty.  The plan as alleged was that the Applicant would be brought just to the gate of Limerick Prison and there would be delivered into the custody of a large contingent of members of An Garda Siochana whereupon a purported arrest would immediately be effected on the Applicant and thereafter he would be held in custody.
2.	Irrespective of whether there was a wrongful conspiracy or not, the re-arrest was unlawful as being an abuse of the process of the Court since it was for the purposes of bringing the Applicant to the Special Criminal Court on new charges which were identical to the charges for which the Applicant was already lawfully before the Court.  
3.	On the authority of the State (Trimbole) -v- The Governor of Mountjoy Prison 1985 I.R. 550, the re-arrest was effectively a device used so as deliberately to impede the proper vindication of the Applicant's constitutional rights effected by his release.  I will deal with each of these points in turn.

The Conspiracy Point
	It is neither necessary nor relevant in my view to review the law of either criminal or civil conspiracy for the purposes of dealing with this argument.  Mr. Charleton, Counsel for the D.P.P. invited the Court particularly to rely on the Canadian Criminal case Regina -v- Cotroni, Papalia -v- The Queen 45 CCC1, which was a case of criminal conspiracy.  It may be a moot point as to whether a conspiracy to infringe constitutional rights having the effect of rendering detention unlawful must necessarily be a criminal conspiracy but whether a conspiracy is criminal or tortious an absolutely essential element is that there be an agreement between the alleged conspirators.  In the tortious conspiracy case of Connolly -v- Lochney and McCarthy (1953) 87 I.L.T.R. 49, Dixon J. defined a conspiracy as being the agreement or combination of two or more people to carry out an unlawful object or to carry out a lawful object by unlawful means.  A similar definition runs through all the relevant case law.  The first question to be considered therefore is, was there an agreement?  Counsel for the Applicant, Mr. Turlough O'Donnell more or less concedes that there is no evidence of an agreement in express terms.  But he argues that the mere co-ordination of plans as between the Department of Justice, the office of the D.P.P., the Gardai and the Respondent should be regarded as an agreement or combination sufficient to form the ingredient of a conspiracy.  I cannot agree.  It is true that there was a passing of information and an element of co-operation with a view to each carrying out their lawful functions but that is far removed from an agreement express or implied to deprive the Applicant of his constitutional rights.  But even if I were wrong about that, I am of opinion that such co-operation as there was could not be construed as being an implied agreement to do anything unlawful or to do anything lawful by unlawful means.  I accept that from the start, the D.P.P. considered that he was not concerned with the release of the prisoners but that he was of course very much concerned to know about such releases so that he could then take whatever lawful steps seemed to him to be appropriate to have the released prisoners re-arrested and brought before a lawful Court to face lawful charges.  By the same token neither the Minister nor the Secretary of the Department nor the Governor of the prison or anyone else in the Department of Justice involved themselves in any agreed plan not to achieve a genuine release or to achieve an unlawful re-arrest.  In my view it is abundantly clear that each of the organs or departments of State involved went to pains to ensure that whatever was done was lawful.  The Applicant's constitutional rights were fully vindicated by the termination of the then existing unlawful detention and the bringing him back before a lawfully constituted Special Criminal Court so that a lawful prosecution could proceed.  In summary therefore, there was no unlawful conspiracy because in the first place there was no agreement or combination of a kind which would be a necessary ingredient of conspiracy and secondly there was at any rate no intention to do something unlawful or to do something lawful by unlawful means.  Of course even if it was believed by all relevant parties that the re-arrest was perfectly lawful there might be an argument on the principles enunciated in a different context in the People (D.P.P.) -v- Kenny 1990 2 I.R. 110, that if in fact the re-arrest was unlawful that would be sufficient to constitute the necessary conspiratorial intent.  I rather doubt that the principle in Kenny's case would extend to conspiracy but even if it did, it would only be relevant if the necessary agreement was first established and if it was then demonstrated that the re-arrest was in fact unlawful.  As will become apparent when I now turn to deal with the second main argument put forward by the Applicant, I am of opinion that the re-arrest was in fact lawful.

The Legality of the Re-arrest Argument
	As already indicated the Applicant makes the case that the re-arrest was unlawful.  Notwithstanding the pleadings and written submissions however it was not argued on his behalf in Court that the re-arrest was unlawful on the grounds that there was never a genuine release in the first place and that a re-arrest of a person in custody was not permissible.  Mr. O'Donnell on behalf of the Applicant did not concede that there was a genuine release but quite properly he did concede that as a matter of law there is nothing unlawful per se about an arrest of a person already in custody or detention provided it is done with the consent of the custodian or detainer [see The People (D.P.P.) -v- Kehoe 1985 I.R. 444].  The argument which Counsel for the Applicant make for impugning the legality of the re-arrest is a different one.  It is submitted that once there were already lawful charges before the Special Criminal Court, it was an abuse of the process of that Court to re-arrest the Applicant for the purpose of bringing him before the Court on what were repeat charges.  While there does not appear to be any direct authority on the point, it may well be that in some circumstances a re-arrest for the same charges would be an abuse of the process of the Court.  But the question is, was it an abuse in this case?  I think not.  I agree with the submissions made in Court by 
Mr. Charleton, Counsel for the D.P.P. that where a person is alleged to have committed an offence there is nothing inherently unlawful about an officer of the guards or indeed any other person exercising a lawful power of arrest for the purposes of having that person charged with that offence.  If, however, the person is already charged with the offence before a lawful Court there may be circumstances where it would be an abuse of the process of that Court to effect a re-arrest.  But as to whether this is so or not will depend upon intention and purpose.  In this case through no fault of the Director of Public Prosecutions an unlawfully constituted Special Criminal Court purported to remand in custody a person being lawfully and properly prosecuted before that Court and having been originally lawfully arrested and charged and brought before that Court.  Because of the unlawfully constituted Court the purported committal warrant or remand order was itself invalid and inoperative with the result that the Applicant was not in lawful custody.  As he was not in lawful custody, the Applicant was entitled to have the unlawful custody terminated.  But this could not give him an immunity to prosecution for the offences which he was alleged to have committed and for which he had been charged.  The Director had a public duty and indeed a constitutional duty to proceed with the prosecutions.  He therefore had to consider how best this could be done effectively.  A factor that the Director was entitled to take into account was the problem of ensuring that the released men could be brought back before the Court.  A person in the position of the Applicant whose trial was pending in the Special Criminal Court for explosives charges would never in any circumstances be unconditionally released by that Court.  He would either be remanded in custody or remanded on bail.  The Applicant was somebody who up to the time of the impugned order had in fact been remanded by the Special Criminal Court in custody.  In these circumstances the Director, in my view, was entitled to recommence the process by arranging that the Applicant once he had been released would be re-arrested and brought before a properly constituted Special Criminal Court and there charged with the same charges.  Such a course of action would wholly regularise the position and at the same time vindicate the Applicant's constitutional rights.  A properly constituted Special Criminal Court would then determine whether the Applicant should remain in custody or should be allowed bail if he applied for it pending the hearing of the new charges which were in effect repeat charges.  It is difficult to see how that procedure, given the particular circumstances in which it was invoked, could possibly be viewed as an abuse of the process of the Court.  On the contrary it was a procedure which had the effect of regularising again the due process of criminal trial before that Court.

The Trimbole Argument
	Closely linked with the conspiracy argument and the unlawful arrest argument is a more broad-fronted attack on the re-arrest which Counsel for the Applicant makes on the alleged authority of The State (Trimbole) -v- The Governor of Mountjoy Prison 1985 I.R. 550.  As I understand the argument, it is that the release and the re-arrest cannot be separated and that they form part and parcel of one overall plan.  That that being so the re-arrest so soon after the release constituted a deliberate and conscious violation of the Applicant's constitutional rights in that effectively those rights were not being vindicated which they would have been, if there was a proper genuine release without a re-arrest.  Again, of course, the Applicant in addition to relying on Trimbole heavily relies on The People (D.P.P.) -v- Kenny 1990 2 I.R. 110, which held that a deliberate and conscious violation of a constitutional right meant the deliberate and conscious doing of an act which was in fact a violation of a constitutional right.  Obviously the re-arrest was deliberately and consciously done and therefore if in fact it was a breach of a constitutional right it was a deliberate and conscious breach.  But I have already given my reasons for holding that the re-arrest as such was neither unlawful nor unconstitutional and therefore it only remains to deal with the wider attack based on the Trimbole case.  Having carefully considered and read the Judgment of Finlay C.J. in the Trimbole case I am satisfied that the circumstances which were relevant in that case are wholly different from the relevant circumstances of this case and that Trimbole cannot be relied upon by the Applicant as an argument for impugning the re-arrest.  The facts of the Trimbole case are well known and can be briefly summarised as follows.  Trimbole was arrested in purported pursuance of Section 30 of the Offences Against the State Act, 1939.  The detention period under that Section was extended for another 24 hours.  At much the same time the Government made an order applying Part II of the Extradition Act, 1965 to the Commonwealth of Australia.  That same afternoon Trimbole applied to the High Court for an Article 40 Inquiry which was fixed for 7.00 p.m. that evening.  At 6.00 p.m. a provisional warrant pursuant to Section 27 of the Extradition Act, 1965 was issued by the District Court.  At the High Court Inquiry, Egan J. found that the guard who made the arrest under Section 30 of the 1939 Act had no genuine suspicion that the applicant had committed a firearms offence as alleged and that the arrest and detention were illegal and he ordered Trimbole's release.  Shortly afterwards, however,  Trimbole was re-arrested this time on foot of the provisional warrant issued by the District Court.  Subsequently, a new order for an Article 40 Inquiry was made by Egan J. and a provisional date some weeks on was fixed for the hearing of it.  In the meantime, the Minister for Justice made an order of signification to the District Court pursuant to the provisions of Section 26 of the Extradition Act, 1965 of the request duly made by the Commonwealth of Australia and received by him in accordance with Part II of the Act of 1965.  Consequent orders were made by the District Court committing Trimbole to prison until the Minister should otherwise order under the Act of 1965 or until the High Court or Supreme Court should order his release.  Upon the ultimate hearing of the Inquiry, Egan J. held that the object of the original arrest pursuant to Section 30 of the Offences Against the State Act, 1939 was to ensure that Trimbole would be available for the provisional warrant arrest; that such arrest amounted to a deliberate and conscious violation of constitutional rights; that there were no extraordinary excusing circumstances; that his detention and subsequent proceedings was tainted by the illegality of his original arrest and accordingly that Trimbole was to be immediately released.  The Supreme Court upheld that decision on appeal but there are important passages in the Judgment of Finlay C.J. which put the decision of the Supreme Court in context and have the effect of clearly differentiating the Trimbole case from this present case.  After considering and reviewing The State (Quinn) -v- Ryan 1965 I.R. 70, The People (Attorney General) -v- O'Brien 1965 I.R. 142, The People -v- Madden 1977 I.R. 336, and The People -v- Lynch 1982 I.R. 64, the former Chief Justice said that he was satisfied that from those decisions:-

	"The Courts have not only an inherent jurisdiction but a positive duty:
	(i)	To protect persons against the invasion of their constitutional rights;
	(ii)	If invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded; and
	(iii)	To ensure as far as possible that persons acting on behalf of the Executive who consciously and deliberately violate the constitutional right of citizens do not for themselves or their superiors obtain the planned results of that invasion."

After dealing with the somewhat analogous principles long established in the Common Law and independent of the Constitution which enable Courts to prevent an abuse of their own processes Finlay C.J. had this to say:-

	"Having regard to the discretion thus arising at Common Law and the duty of the Court to intervene in appropriate cases under our Constitution it is necessary to look at the position of the prosecutor in this case.  On the evidence in the High Court he is not a person who is suspected of or wanted for any offence against the law of this country.  The section under which his original purported arrest took place is part of a code intended to protect the State against its enemies and those seeking to overthrow it by unlawful means.  Not only did the prosecutor not come within that category of persons but the only right which the State would have had to interfere with his liberty would be under the Extradition Act, 1965 at the request of another country with which the State had reciprocal extradition arrangements.  His purported arrest under Section 30 at the time at which it took place when no such arrangements existed was therefore not only a conscious and deliberate violation of his constitutional rights but a flagrant misuse of Section 30 of the Offences Against the State Act, 1939.  It is clear that not every unlawful arrest even though it may be classified as conscious and deliberate, gives to a person so arrested, after his necessary release from illegal detention, any immunity from the proper enforcement of due processes of law or makes him unamenable to answer to criminal offences in our Courts."

	In this case, there is no evidence of a scheme deliberately involving abuse of the process of the Courts as there was in Trimbole and unlike Trimbole not only was the Applicant wanted for offences against the law of this country but a direction had been given by the Director of Public Prosecution that he was to be prosecuted for those offences in the Special Criminal Court.  The former Chief Justice characterised the finding of Egan J. as being in effect a finding:-
	"That the unlawful arrest was part and parcel of a planned operation prompted by delay in bringing into operation the reciprocal extradition agreements, and therefore the application of the Act of 1965 as between Australia and Ireland."

The High Court Judge had found that the unlawful Section 30 arrest was a precaution purposely put in operation so as to try and avoid the possibility that Trimbole would leave the jurisdiction or otherwise become unavailable for arrest before the application of Part II of the Act of 1965 to Australia and the issue of the Provisional Warrant under Section 27.  None of this kind of wrongful scheming occurred in this case.  On the contrary, it is perfectly clear from the evidence that the Minister for Justice by herself and through the Secretary of the Department and her other officials, the Director of Public Prosecutions and his staff and the Attorney General and his staff were all anxious to ensure that any act done or direction given by or on behalf of them was in accordance with law.  There is no doubt that all parties wanted to regularise the irregular, but I am satisfied that they were determined to do this by lawful means.  As a consequence of the respective actions and directions of the Notice Parties, the Applicant is lawfully now in exactly the same position as he would have been had there been no unlawful remand by an unlawfully constituted Special Criminal Court.  I am satisfied, therefore, that the Applicant is being detained in accordance with the law and I would therefore refuse an Order of release.
	There is, however, one other matter to which I want to refer.  There was some considerable debate at the hearing as to whether the Minister for Justice was correct in law in ordering the release of the Applicant and the other prisoners by executive order or whether she should have taken steps to ensure that the question of whether they be released or not be determined by a Court given that the Applicant and the other prisoners were remand prisoners.  Counsel for the Minister, Mr. Comyn has strongly argued in support of the action taken by the Minister.  He points out that the relevant committal warrant in this case was not just a bad order made by a lawfully constituted Court but was an order which was bad because it was made by an unlawfully constituted Court.  However, I am satisfied that the legal position is by no means clear and that there are legitimate arguments both ways.  I do not think that I should express any view on the matter because it is not really relevant to the Applicant's Article 40 Inquiry.  Even if the Minister did not have the power to do what she did, the Applicant was in fact released.  Therefore, the arguments as to the lawfulness of the re-arrest are unaffected by whether she had the power to order release or not.