[2018] IEHC 334
THE HIGH COURT
[2018 No. 9 SSP]
IN THE MATTER OF THE CONSTITUTION
AND
IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS
AND/OR
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
BY
MARK KENNEDY AT PRESENT IN CUSTODY IN PORTLAOISE PRISON
(APPLICANT)
JUDGMENT of Mr. Justice David Barniville delivered on the 8th day of June, 2018
1. The applicant is at present in custody in Portlaoise Prison, Portlaoise, Co. Laois.
2. On 18th October, 2011 the applicant was sentenced to imprisonment for concurrent periods of seven, five and three years, by His Honour Judge Thomas Teehan, sitting in the Circuit Court in Clonmel. The applicant had pleaded guilty to the three counts for which he was sentenced to be imprisoned. The applicant had pleaded not guilty to three other counts. Judge Teehan, suspended the sentence for a period of seven years pursuant to s. 99(1) of the Criminal Justice Act, 2006 (as amended) (the “2006 Act (as amended)”) on certain conditions. The offences for which the applicant pleaded guilty were extremely serious including assaulting a peace officer, possession of a firearm with intent to commit an indictable offence and threatening to kill or cause serious harm. The applicant did not appeal the sentence or the conditions imposed.
3. Within the period of seven years for which the sentence was suspended by Judge Teehan, the applicant was charged with four further offences. The applicant pleaded not guilty to those offences in Thurles District Court on 21st September, 2015. The District Court Judge sitting in Thurles, was satisfied that the applicant was a person to whom an order made under s. 99(1) of the 2006 Act (as amended) applied (the order having been made by Judge Teehan at Clonmel Circuit Court on 18th October, 2011) and that the conviction by the District Court occurred during the period of suspension of the sentence concerned. As a result, the District Judge remanded the applicant to Limerick Prison to be detained there until the next sitting of the Circuit Court at Nenagh on 6th October, 2015. The applicant made a number of further appearances before the Circuit Court in Nenagh and Clonmel before the matter was finally dealt with by Judge Teehan sitting in Nenagh Circuit Court on 5th and 6th April, 2016. On that date, His Honour Judge Teehan made an order under s. 99(10) of the 2006 Act (as amended), that the suspension of the sentence imposed by that court on 18th October, 2011 be revoked and that the applicant serve the sentence of seven years’ imprisonment imposed upon him on that date on the basis that the applicant had failed to comply with the conditions of the bond entered into by him. The Circuit Court directed that revocation of the sentence was to date from 21st September, 2015 (taking into account the period spent in custody pending the revocation of the order of 18th October, 2011).
4. The applicant was remanded back to Thurles District Court on 12th April, 2016 for sentence in respect of the offences for which he had been convicted on 21st September, 2015. The applicant was sentenced to periods of imprisonment of five months and six months’ imprisonment in respect of the offences of criminal damage and assault for which he was convicted on 21st September, 2015 (with such terms being consecutive). Both of those sentences were directed to commence on the legal determination of the sentence of seven years imposed by the Circuit Court on 6th April, 2016. The District Court Judge fixed bail in respect of any appeal at €500 (on the applicant’s own bond) with one independent surety in the sum of €2,500 together with a cash lodgement of €1,000 with the further condition that the accused was not to commit any offence and to be of good behaviour. The applicant did not lodge an appeal from his conviction or sentence in the District Court to the Circuit Court within the time permitted. The time for appeal to the Circuit Court under the District Court Rules expired on 26th April, 2016. As explained later, the applicant did subsequently apply for an extension of time to appeal to the Circuit Court from his conviction and sentence in the District Court. That application was made on 15th July, 2016 and the extension of time was granted by the District Court sitting at Thurles on 19th July, 2016. The appeal has not yet been heard and has been adjourned from time to time. It is now apparently to be heard by the Circuit Court on 13th December, 2018.
5. The applicant now wishes to apply for an enquiry into the legality of his detention in Portlaoise Prison pursuant to Article 40.4 of the Constitution and/or for an order of habeas corpus. He is not legally represented on this application (although he was legally represented on a previous similar application).
6. This application was received by the Registrar of the High Court on 24th May, 2018 and acknowledged on 30th May, 2018.
7. This is the third such application brought by the applicant of which I am aware. The most recent application brought by the applicant pursuant to Article 40.4 was heard and determined (following a full hearing) by Eagar J. on 23rd June, 2017. See: Mark Kennedy v. Governor of Portlaoise Prison [2017] IEHC 402. As appears from his detailed and considered judgment, Eagar J. was satisfied that the applicant was then in lawful custody and refused to direct the release of the applicant. In an earlier Article 40 application, in which one of the grounds raised was similar to the ground again raised by the applicant on this application, Twomey J. refused to direct an enquiry into the lawfulness of the applicant’s detention (the applicant was then in custody in Limerick Prison). See: In re Mark Kennedy (Unreported, High Court, Twomey J., 18th May 2016).
8. The applicant relies in support of his application on a statement signed by him on 17th May, 2018 and on an affidavit affirmed by the applicant on the same date. The applicant alleges that his detention is unlawful having regard to the decision of the High Court (Moriarty J.) in Edward Moore v. Director of Public Prosecutions, Ireland and Attorney General [2016] IEHC 244, (Unreported, High Court, Moriarty J., 19th April, 2016) (“Moore”) in which the court found ss. 99(9) and (10) of the 2006 Act (as amended) to be unconstitutional. The applicant seeks to distinguish his case from the case of Paul Clarke v. The Governor of Mountjoy Prison [2016] IEHC 278 where the High Court (McDermott J.) refused to direct an enquiry into the lawfulness of the applicant’s detention following the judgment in Moore on the basis that he was satisfied that the applicant was being detained in accordance with law. The applicant seeks to distinguish that case from his on the basis that in Clarke the applicant had pleaded guilty to the offences which triggered the revocation of the earlier suspended sentence whereas the applicant had pleaded not guilty to the charges for which he was convicted by the District Court on 21st September, 2015. He argues, therefore, that he is entitled to the benefit of the judgment in Moore, that his detention is unlawful and that he should be released.
9. As mentioned earlier, the applicant has made two previous applications pursuant to Article 40.4. The first was made in writing by the applicant without the benefit of legal representation on 20th April, 2016 (the day after the judgment in Moore was delivered). That application was determined by Twomey J. in a written judgment delivered on 18th May, 2016. One of the grounds on which the applicant sought the enquiry under Article 40 was that his conviction in the District Court was obtained in a “fundamentally irregular manner” in order to activate the sentence imposed by the Circuit Court which had been suspended pursuant to s. 99 of the 2006 Act (as amended). Twomey J. refused to direct the enquiry sought.
10. A further application pursuant to Article 40.4 of the Constitution was made by the applicant in May 2017 to the High Court (Eagar J.). Eagar J. made an order directing an enquiry on 15th May, 2017. The Assistant Governor of Portlaoise Prison certified that the applicant was being held pursuant to a Circuit Court warrant and two District Court committal warrants. The court heard extensive argument on behalf of the applicant and on behalf of the Governor of Portlaoise Prison and delivered a detailed judgment on the application on 23rd June, 2017. Eagar J. was satisfied that the applicant was then in lawful custody and rejected the arguments advanced on his behalf based on the judgment in Moore.
11. The applicant states at para. 18 of his affidavit that he did not receive a copy of the judgment delivered by Eagar J. until two weeks prior to the date of his affidavit in respect of the present application. At para. 18 of that affidavit, the applicant states:
“When I read the Edgar (sic) judgment which I received 2 weeks ago, I saw why it did not succeed and should not in the supreme court as it did not contain the correct relevant chronology of the case at paragraph no 62 which, namely the Twomey judgment where the fundamental flaws of my detention are claimed in relation to section 99, and the chain of events to get the triggering appeal over the line to use Tim Kenneallys own words are not present.” (Direct quotation from para. 18 of the applicant’s affidavit)
12. It appears, therefore, that the applicant accepts the chronology set out by Eagar J. in the course of his judgment save for the fact that that chronology did not refer to the application for an Article 40 inquiry made by the applicant to the High Court on 20th April, 2016, which application was refused by Twomey J. in the judgment he delivered on 18th May, 2016.
13. The applicant advances two reasons why his application failed before Eagar J. The first reason is that the chronology did not refer to his application pursuant to Article 40 made on 20th April, 2016. The second reason advanced is that the judgment of Eagar J. did not refer to the “chain of events” by which the applicant sought to (and ultimately did) appeal to the Circuit Court from his conviction and sentence in the District Court (having obtained an extension of time to do so in July 2016).
14. I have carefully considered each of these two grounds advanced by the applicant in support of his application. I am satisfied that neither ground has any merit and that it would not be appropriate for me to direct an enquiry pursuant to Article 40.4 or to make a conditional order of habeas corpus. I set out my reasons below.
15. I completely agree with the judgment delivered by Eagar J. on 23rd June, 2017 and with the reasons given by Eagar J. for upholding the lawfulness of the applicant’s detention. In light of the conclusions reached by Eagar J., I do not believe that it would be appropriate for me to direct an inquiry under Article 40.4.
16. As regards the two grounds relied upon by the applicant in an attempt to persuade the court that an enquiry should now be held notwithstanding the findings of Eagar J., I am not satisfied that either ground would entitle me to reach a different conclusion to that reached by Eagar J.
17. The first ground on which the applicant contends that a different conclusion ought to have been reached by Eagar J. is that his judgment did not contain a reference to the fact that he applied on 20th April, 2016 for an enquiry into the lawfulness of his detention pursuant to Article 40.4 of the Constitution. It is true that the chronology in the judgment of Eagar J. does not refer to that application. However, I do not believe that that omission is material in any way. Relying on the decision of the Supreme Court in A. v. The Governor of Arbour Hill Prison [2006] 4 IR 88, and on the emphasis put by the Supreme Court on the non-retrospective application of a finding of unconstitutionality and the importance attached to the finality of the criminal proceedings, Eagar J. stated that the time limit for an appeal from the District Court had expired on 26th April, 2016 and that those proceedings had reached finality at that stage (see paras. 64-66 of the judgment of Eagar J.). At that stage no appeal had been lodged by the applicant. An application for an extension of time to appeal was brought much later, in July 2016, and an extension was granted by the District Court on 19th July, 2016. An appeal was then lodged on 20th July, 2016. All of this happened well after the time for appealing had expired (on 26th April 2016) and well after the judgment in Moore (19th April, 2016). The applicant does not contend that he did appeal within the required time period. Nor could he, since he subsequently had to apply for an extension of time. In relying on the fact that he made an application for an enquiry pursuant to Article 40 on 20th April, 2016, the applicant appears to be confusing the making of such an application with the bringing of an appeal within the requisite time for appeal and the consequences of the distinction between those different procedures. The Article 40 application which was determined by Twomey J. was not an appeal from the conviction or sentence imposed by the District Court. The making of that application, therefore, does not in any way affect the conclusion of Eagar J. that finality in the District Court proceedings had been reached by the date of the expiry of the time for appeal on 26th April, 2016 as no appeal had been brought from the conviction or sentence imposed by the District Court by that date. The bringing of the Article 40 application on 20th April, 2016 does not, therefore, affect the conclusion of Eagar J. that finality had been brought to the District Court proceedings by 26th April, 2016. This is so notwithstanding that the applicant subsequently sought (and obtained) an extension of time to appeal from the District Court to the Circuit Court.
18. Even more significantly, however, Eagar J. stated at para. 67 of his judgment as follows:-
“67. Neither in the Circuit Court at the time of activation of the suspension, nor at the time of the District Court sentence on the 12th April, 2016 was any issue raised on behalf of the applicant in relation to the complaints made by the applicants in [Moore] … The Court notes that the time for appeal against the District Court sentence expired a week after the decision in Moore v. Ireland.”
19. The applicant does not suggest that he did in fact raise any complaint of the type made by the applicants in the Moore case before the Circuit Court on 6th April, 2016 (or on any of the various occasions on which the applicant’s case was before the Circuit Court in the period between October 2015 and 6th April, 2016). Nor does the applicant claim to have raised any such complaint when the matter was back before the District Court on 12th April, 2016.
20. I agree with the conclusion of Eagar J. (at para. 68 of his judgment) in relation to the application of the decision of the Supreme Court in A. v. Governor of Arbour Hill Prison. I further agree with the conclusion reached by Eagar J. (at para. 69 of his judgment) that the extension of time subsequently granted to the applicant to appeal from the District Court to the Circuit Court does not render his detention unlawful and that it is not appropriate for the applicant to seek relief in respect of his detention pursuant to Article 40.
21. The applicant did not raise any issue concerning the constitutionality of ss. 99(9) and (10) of the 2006 Act (as amended) in the course of his appearance before the Circuit Court or the District Court and did not appeal to the Circuit Court within the time for doing so. In my view, the applicant is not entitled to rely on the finding of unconstitutionality of ss. 99(9) and (10) of the 2006 Act (as amended) made by the High Court in Moore having regard to the decision of the Supreme Court in A v. Governor of Arbour Hill Prison.
22. As regards the second reason advanced by the applicant to persuade the court to reach a different conclusion to that reached by Eagar J., namely, that the judgment of Eagar J. did not refer to the “chain of events” leading to the subsequent bringing of his appeal to the Circuit Court from the District Court, I am not satisfied that this ground has any merit whatsoever. The applicant’s affidavit sets out various interactions which he had with various solicitors and with a barrister in the period from 24th July, 2016 onwards. I do not see the relevance of any of these interactions to the present application. The fact of the matter is that the applicant did not lodge his appeal from the District Court to the Circuit Court within the required time period and did not in fact do so until an extension of time was obtained from the District Court on 19th July, 2016. The applicant’s application pursuant to Article 40 on 20th April, 2016 was not an appeal and the enquiries made by the applicant of the prison authorities in relation to the outcome of that application do not have any relevance to the question of the validity of the applicant’s detention. Ultimately, the applicant obtained an extension of time from the District Court to appeal to the Circuit Court and did appeal. The fact that the applicant may have had some difficulties with his legal representatives (and I make no judgment at all as to where the responsibility for those difficulties may lie) is immaterial to the issue of the lawfulness or otherwise of the applicant’s detention. I do not see, therefore, that the omission to refer to these developments in the judgment of Eagar J. (presumably on the basis that they were not drawn to his attention at the time) has any relevance to the question of the lawfulness of the applicant’s detention.
23. I am satisfied that there is nothing in the applicant’s affidavit or in the statement supporting his application which would lead me to reach a different conclusion to that reached by Eagar J. in his judgment of 23rd June, 2017.
24. Further, insofar as it is suggested that the applicant should be released from Portlaoise Prison to enable him to prepare for his District Court appeal which is now listed for hearing in the Circuit Court on 13th December, 2018, there is no legal basis on which the applicant could be released for that purpose. There is no reason why the applicant cannot prepare for that appeal while in custody.
25. For these reasons, I refuse the applicant’s application.
