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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Farrell -v- Governor of St. Patrick's Institution [2014] IESC 30 (10 April 2014) URL: http://www.bailii.org/ie/cases/IESC/2014/S30.html Cite as: [2014] IESC 30 |
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Judgment Title: Farrell -v- Governor of St. Patrick's Institution Neutral Citation: [2014] IESC 30 Supreme Court Record Number: 521/12 High Court Record Number: 2012 1314 SS Date of Delivery: 10/04/2014 Court: Supreme Court Composition of Court: Denham C.J., Hardiman J., O'Donnell Donal J., Clarke J., MacMenamin J. Judgment by: Denham C.J. Status of Judgment: Approved
Outcome: Allow And Set Aside | ||||||||||||||||||||
THE SUPREME COURT Appeal No: 521/2012 Denham C.J. Hardiman J. O’Donnell J. Clarke J. MacMenamin J.
Michael Farrell
also known as Regan Applicant/Respondent and The Governor of Saint Patrick’s Institution Respondent/Appellant
Judgment delivered on the 10th day of April, 2014, by Denham C.J. 1. This is an appeal by the Governor of St. Patrick’s Institution, the respondent/appellant, referred to as “the appellant”, from the judgment of the High Court (Hogan J.) delivered on the 19th October, 2012, which declared that Michael Farrell, (also known as Regan), referred to as “the respondent”, was entitled to have been released on the 4th July, 2012. 2. At issue is whether the District Court had jurisdiction to remand the respondent in custody on the 28th June until the 5th July, notwithstanding a stay granted in the High Court (Birmingham J.) in judicial review proceedings. It was submitted on behalf of the appellant that the issue is relevant to many prosecutions, which are the subject of judicial review proceedings. 3. There is a preliminary issue as to whether the appeal is moot. Background 5. On the 1st May, 2012, the respondent was granted bail by Trim District Court, with bail fixed in the sum of €300 on his own bond and a further independent surety of €300. He was remanded in custody with consent to bail until the 3rd May, 2012. He was remanded on a number of further occasions, with consent to bail, to the 28th June, 2012. 6. On the 28th June the respondent was produced in custody before the District Court in Trim. The stay order which had been made by the High Court (Birmingham J.) on the 25th June was before the District Court. Counsel for the respondent submitted that the District Court had no jurisdiction to make an order remanding the respondent in custody on the charges as the proceedings had been stayed. 7. Trim District Court did not accept counsel’s submission, and the respondent was remanded in custody, with consent to bail, to Cloverhill District Court on the 5th July, 2012. 8. When the matter came before Cloverhill District Court on the 5th July, 2012, no further order was made, and the respondent was released. 9. On the 4th July, 2012, there was an application to the High Court for an inquiry pursuant to Article 40.4.2° of the Constitution, in which it was submitted that the respondent was entitled to be released on that date. 10. The issue arises in circumstances where the respondent was entitled to be released on the 4th July, 2012, unless the District Court order made on the 28th June remanding him in custody until the 5th July, 2012 is valid. Application for an Inquiry pursuant to Article 40.4.2 12. The facts deposed to by John Quinn included that on the 27th April, 2012, the respondent was convicted of an offence contrary to s. 15 of the Misuse of Drugs Act, 1977, as amended, and was sentenced to three months detention. With remission the respondent would be released from this detention on the 4th July, 2012. 13. However, there was also the warrant from Trim District Court remanding the respondent in custody until the 5th July, 2012. 14. Mr. Quinn referred to the charges set out earlier in this judgment which were pending in the District Court, reference was made to the several remands in custody with consent to bail leading up to the order of the 21st June, 2012, when the respondent was remanded in custody with consent to bail to the 28th June, 2012. 15. Certain legal issues arose in relation to the prosecution before Trim District Court. Leave was sought to apply for judicial review of matters including a refusal of legal aid, and seeking declarations in respect of the Criminal Justice (Legal Aid) Act 1962, before the High Court (Birmingham J.) on the 18th June, 2012. 16. On the 18th June, 2012, in the judicial review proceedings, the High Court (Birmingham J.) granted leave to apply for judicial review. 17. On the 25th June, 2012, a stay was sought from the High Court (Birmingham J.), in the same proceedings and it was granted. 18. The order of the High Court of the 25th June, 2012, provided, having referred to the earlier order of the 18th June, 2012, granting leave to apply for judicial review, that:-
The High Court 21. On the issue as to whether the matter was moot, the High Court held:-
23. On the substantive issue the High Court held:-
18. But whatever the differences between a stay and injunction for other purposes, these differences have no bearing on the present case. What matters here is the effect of the stay and the general coercive effect of such an order cannot be in doubt. The order stayed the criminal proceedings then pending against the accused in the District Court. This means that the District Court was not entitled to take any further steps adverse to the applicant for so long as that order was in force. Of course, the existence of the stay did not mean that the District Court would not have been entitled to make no order or even to adjourn the criminal proceedings to a named date. A step of that kind is essentially neutral in nature: it is not inconsistent with a stay order to maintain the status quo pending further order from the High Court. 19. For so long as the stay was in force in the form in which it was, the District Court was not, however, entitled to make the order which was actually made, i.e., an order remanding the applicant in custody, even if there was consent to bail and even if the applicant had been previously so remanded in custody. A remand order of that kind was positively inconsistent with the nature of the stay which had been granted by Birmingham J., even if- as I am absolutely certain was the case- Judge Brennan acted perfectly bona fide and honourably in a difficult situation. The fact remains, however, that he had no jurisdiction to make the order which he did having regard to the terms of the stay. Conclusions 20. In these circumstances, it is plain that the order of the District Court remanding the applicant in custody until 5th July was invalid. It follows in turn that there was no proper legal basis for detaining the applicant on 4th July, 2012. While the Court's task in an Article 40.4.2 inquiry is confined to determining the legality of the detention, in these special circumstances I will simply declare that the applicant was entitled to have been released from custody on 4th July, 2012.” 24. The appellant filed six grounds of appeal, submitting that the High Court erred in law or in fact or on a mixed question of law and fact as follows:-
(ii) Having identified that the purpose of a stay in Judicial Review proceedings was to maintain as far as practicable the status quo, the learned Trial Judge erred in law in holding that the order of the District Court of the 28th of June, 2012, failed to do so. (iii) In holding that the effect of the stay granted by order of the 25th day of June, 2012, was to preclude the District Court from making an order further remanding the Respondent in custody, notwithstanding that there was consent to bail and/or that the Respondent had so previously been remanded in custody. (iv) In holding that the District Court Order of the 28th of June, 2012, was not neutral in nature and/or was inconsistent with maintaining the status quo in relation to the parties in circumstances where there was no application seeking to vary the status of the Applicant/Respondent before the High Court on the 25th day of June, 2012 or on any other date or otherwise. (v) In holding that an order remanding the Respondent in criminal proceedings on the same terms and conditions as had previously existed, where such conditions did not form part of any application for judicial review, was inconsistent with the terms of the stay and/or failed to maintain the status quo and/or was an adverse step in the proceedings. (vi) In holding that the detention of the Respondent had no legal basis where the District Court had remanded the Respondent in custody with consent to bail until the 5th day of July, 2012.” 25. Both parties provided written submissions, including supplemental submissions in relation to the issue of mootness. In addition, the Court heard oral submissions. I shall consider first the preliminary issue as to whether the appeal is moot. Moot? 27. The appellant submitted that the Court should exercise its discretion to hear the appeal on the following grounds:-
(ii) Should the appellant succeed the respondent can be re-charged. The effect of the judgment and order of the High Court would appear to be that any attempt to re-charge the respondent would be unlawful while the judicial review is pending. There is therefore a potentially live issue between the parties as to whether or not the respondent can be re-charged. (iii) There are recognised exceptions to the mootness rule which should be applied in this case. (iv) The Court should hear the appeal on the grounds that to do otherwise would be “declining to exercise its proper appellate jurisdiction” See Re Zwann [1981] I.R. 395, 401 per O'Higgins C.J. (v) The effect of the order and judgment of the High Court is to fundamentally alter the status of the accused and to cast into abeyance the underlying criminal proceedings in circumstances where the appellant has not been heard in relation to the application for a stay. (vi) The issues raised are of real concern to the appellant. They potentially affect a significant number of cases in relation not merely to the refusal of legal aid, but also to the injunction of prosecutions on grounds of prejudice and/or delay where the granting of a general ‘stay’ has the effect of precluding the continued remanding of an accused in custody in the District or Circuit Court in circumstances where such continuing remands do not appear to be the gravamen of an applicant’s case or matters which the judge granting leave was asked to consider. It was stated that remand prisoners are imprisoned pending trial only if they are likely to abscond, interfere with witnesses or commit and serious offence and consequently any change in their status on an effectively ex parte basis is of real concern to the appellant. 29. Counsel for the respondent referred to Dunne v. Governor of Cloverhill Prison [2009] IESC 43, which was an appeal against an order of Peart J. directing the release of the applicant following his arrest and recharge immediately after being released by Edwards J. in the first set of proceedings. In that case the appeal was dismissed, and it was stated:-
31. It was submitted on behalf of the respondent:-
(ii) The ruling on mootness in the High Court did not, by definition, address the question whether the Supreme Court should entertain an appeal which has long since become moot, particularly because of the scarcity of judicial resources and the realities presented by over burdened lists at the appellate tier. (iii) The appellant submitted that the respondent could have taken judicial review proceedings to challenge the order remanding him in custody. However, the Constitution provides a remedy which the respondent availed of. Any speculation as to what may have happened, had he sought judicial review of his incarceration, is irrelevant to the case before this Honourable Court. (iv) It was argued that the appellant had submitted that a failure to entertain this appeal would be to “decline to exercise its proper appellate function”. In particular, the appellant submitted that the respondent, by seeking judicial review in which leave and a stay were granted on an ex parte basis, has apparently deprived the State of an opportunity to be heard. It was argued that this ignored the reality that the appellant could have sought to vary or set aside the stay, a procedure provided for under the Rules of the Superior Courts. It was submitted that it is telling that this course of action was not followed in this case. (v) The stay granted in this case was concerned with the “criminal proceedings”, not the criminal trial. If the appellant had general concerns in relation to the form of a stay granted in ex parte proceedings, it is open to the appellant to challenge that form of stay. This case cannot be separated from the specific and special language of the stay sought and granted by Birmingham J. An infinite variety of qualifications can be placed upon a stay so as to determine its ambit. (vi) The issues raised in this case are not of such general application as to warrant this Honourable Court departing from its policy of declining to hear appeals that are plainly moot. 33. Clearly the appeal is moot, the respondent has been released. The respondent brought an application for an inquiry under Article 40.4.2° of the Constitution. The relief which may be granted on such an inquiry is to release an applicant. The High Court granted the relief and released the applicant. Consequently, the appeal is moot. Discretion 35. Applying the law well established by cases of this Court, including those referenced above and G v. Collins [2005] 1 ILRM 1, Irwin v. Deasy [2011] 2 IR 752 O’Brien v. PIAB (No. 2) [2007] 1 IR 328, Okunade v. The Minister for Justice, Equality and Law Reform & Ors [2013] 1 ILRM 1, I would hear the appeal. 36. The reasons why I would hear this moot appeal include the following:-
(ii) the decision has an effect on criminal proceedings which are of real and reasonable concern to the appellant; (iii) such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the appeal; (iv) the decision potentially affects many criminal cases in the District Court; (v) the decision has a systemic relevance to cases before the courts, where an application for judicial review has been granted. 37. The substantive issue is the nature and effect of a stay in the circumstances. Submissions on behalf of the Appellant 39. On behalf of the appellant it was submitted, inter alia, that the purpose of a stay in judicial review proceedings is to preserve the status quo in relation to the decision under challenge. It was submitted that the reliefs sought in the judicial review were to restrain the prosecution of the respondent unless he was afforded legal representation to enable him defend the criminal charges. 40. It was submitted on behalf of the appellant that the failure of the learned High Court judge to have regard to the meaning and effect of the stay granted by the High Court in the context of the judicial review proceedings was wrong in law and had the effect of excluding matters relevant to the effect of the stay granted by Birmingham J. 41. Further, it was submitted that the relief sought was directed towards the trial of the respondent, rather than any remand in the District Court. 42. It was submitted that the learned High Court judge erred in finding that the maintenance of the respondent’s status by the District Court, by remanding him on the same terms and conditions, was not preserving the status quo. 43. It was submitted that the learned High Court judge erred in holding that the effect of the stay was to preclude the District Court from making an order remanding the respondent in custody, notwithstanding that there was consent to bail and that the respondent had previously been remanded in custody. It was submitted that where a person has previously been remanded by a court of trial, the terms and conditions in relation to bail or custodial status of the person so remanded remain valid unless that order is impugned, and is the subject of the reliefs sought. 44. It was submitted that there was no evidence that Birmingham J. had ever been addressed, or asked to consider the issue of bail in relation to the stay. It was submitted that the consequence of the order of Hogan J. is that two distinct positions on a stay application now arise depending on whether a person is in custody or not:-
(ii) while a person in custody on foot of a valid order is now no longer subject to such conditions. 45. It was submitted also that the High Court erred in finding that an order remanding the respondent on the same terms and conditions was an adverse step in the proceedings. A further remand on the same terms and conditions was not an adverse step, but rather preserved the situation. Submissions on behalf of the Respondent 47. It was submitted that the order of Birmingham J. stayed the proceedings, that it was in force on the 25th June, 2012, that it bound the District Court, and that Hogan J. could not look behind it or re-evaluate its merits. 48. It was submitted that if a respondent in judicial review proceedings takes issue with the form of a stay, they can challenge the grant of the stay. 49. Reference was made to McDonnell v. Brady [2001] 3 IR 588 , where the respondents challenged a stay granted in judicial review proceedings. Keane C.J. stated obiter, that:-
50. It was submitted that owing to the strict time limits established in law, when the respondent was produced in Trim District Court on the 28th June, 2012, he was not a person who was remanded in custody. The remand warrant requiring his production in Trim District Court on the 28th June, 2012, expired that day. He could only be further remanded in custody by a new order of the District Court. A new order would have to be made with reference to all the circumstances. 51. It was submitted that remanding a person in custody requires the invocation of the Court’s jurisdiction and as such a step in the proceedings which is prohibited by the order staying the proceedings. 52. It was submitted that incarcerating a person in pre-trial custody is not neutral, it is not maintaining the status quo. 53. It was submitted that when a Court grants leave to seek judicial review, a stay may be requested by an applicant. Order 84, rule 20 (8) (b) of the Rules of the Superior Courts, as amended by S.I. no. 691 of 2011: Rules of the Superior Courts (Judicial Review) 2011, sets out that where either certiorari or prohibition is sought then the proceedings may be stayed, by order, until the determination of the application for judicial review, and that without any further clarification a stay operates as a complete suspension of the proceedings. 54. Further, that any order invoking the jurisdiction of a Court is a step in the proceedings. It was submitted that the order in Trim District Court on the 28th June, 2012, was a step in the proceedings. Thus, in this case, the order of Birmingham J. stayed the proceedings, and the order of Trim District Court contravened that order. Decision
[emphasis added] Key words are “staying the proceedings”. 57. The reliefs sought included inter alia:-
(ii) An order of certiorari … quashing the decision of Judge Mahon refusing the respondent legal aid on the 7th June, 2012. (iii) An order of certiorari … quashing the decision of Judge McMahon refusing to assign the [respondent] a mentor on the 7th June, 2012, and to provide for same as part of a legal aid certificate. 59. Thus, the proceedings stayed in this case are specifically identified, and the issue then arises as to the effect on the proceedings of the stay order. 60. Black’s Law Dictionary, Ninth Edition, p. 1548, defines a stay as:-
2. An order to suspend all or part of a judicial proceeding or a judgment arising from that proceeding.”
62. It is clear, therefore, that a stay does not have the effect of terminating proceedings. Rather a stay leaves the proceedings in being but prevents the proceedings from progressing in any significant way. To the extent that it might be suggested that it was appropriate that some progress might be made in the proceedings, notwithstanding a stay, then that is a matter to be addressed to the judge granting the stay. An application can be made to that judge to make the stay subject to terms which would permit whatever progress might be considered desirable. In the absence of such terms, a stay will prevent the proceedings from significantly progressing. That does not, however, mean that any orders necessary to allow the proceedings to continue in being, albeit in a “holding pattern”, cannot be made. Thus the real question is as to whether any order sought to be made is one which is consistent with or contrary to the fact that the proceedings are stayed. Orders which are a necessary part of keeping the proceedings in being are entirely consistent with a stay for they do not progress the proceedings in any material way but simply allow the proceedings to continue in their holding pattern. On the other hand different types of orders which would have the effect of materially progressing the proceedings are contrary to a stay and cannot be made in the absence of a specific provision in the stay order qualifying the terms of the stay in such a way as to permit orders of the type in question to be made. 63. However, the granting of leave to apply for judicial review, and a stay pending the determination of the application for review, do not terminate the underlying proceedings the subject of the judicial review. The underlying proceedings are suspended pending the review. 64. Any other interpretation would have the effect that, on an ex parte application for leave to apply for judicial review where the DPP was not on notice or a party to the application, the prosecution process would be effectively terminated. 65. Consequently, the granting of a stay by the High Court on an application for judicial review postpones or suspends the proceedings relating to the criminal trial, the subject of an application for Judicial Review, but it does not terminate the proceedings, or mean that a District Court Judge could not continue to make orders while the proceedings are suspended, such as to remand an accused in the circumstances, provided that any such orders are required to maintain the proceedings in being and are not contrary to the stay. Thus, the District Court continued to have jurisdiction to make such an order, pending the determination of the application for Judicial Review. 66. Consequently, I would allow the appeal.
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