Judge releases four anti-water charges protesters

The President of the High Court has freed four jailed anti-water charges protesters after upholding their claims they were unlawfully detained in Mountjoy Prison under a committal warrant which contained a number of errors.

Loud cheers and applause from supporters of the four greeted the judge’s ruling and all four walked free from court escorted by a group of jubilant supporters.

The four were brought to court earlier under escort by eight prison officers and there were also a number of gardaí in court.

They are: Damien O'Neill, Greenwood Park, Coolock; Paul Moore, Mount Olive Grove, Kilbarrack; Bernie Hughes, McKelvey Avenue, Finglas, and Derek Byrne, Streamville Road, Donaghmede. On February 19th last, Mr O'Neill and Mr Moore were jailed for 56 days while Ms Hughes and Mr Byrne were jailed for 28 days.

In their proceedings under Article 40 of the Constitution arguing their detention was unlawful, the core argument advanced was that the committal warrant failed to properly reflect the High Court decision which convicted them for contempt and jailed them.

Their counsel Micheál P O’Higgins argued the committal warrant reflected only the “punitive” aspect of Mr Justice Paul Gilligan’s decision and failed to indicate he had also left open the option of purging their contempt.

It was also argued the warrant failed to include the name of Mr Justice Gilligan as required under the relevant court rules and wrongly included the Chief Justice, Ms Justice Susan Denham, in the body of the document.

In a brief ruling, Mr Justice Nicholas Kearns directed the four should be freed immediately due to "errors" in the warrant and said he will give his reasons for that in a detailed judgment later this week.

He stressed the challenge related only to errors in the warrant and there was no allegation of any unfairness in the court hearing which led to the lawful conviction and jailing of the four for contempt of court orders restraining interference with water meter installer GMC Sierra.

No complaint was being raised in this application about either the conviction or the sentence imposed and no appeal had been brought against those, he said.

The issue concerned the “instrumentality” of how the four were actually committed to prison and that procedure was not a judicial function, he noted.

The committal warrant was “the only justification” for the detention and was “lacking in a number of key respects”, he said. While some may see errors in a committal warrant as technical in nature, such errors are “critical” in the context of applications under Article 40.

As a result of those errors, and although the four remain lawfully convicted and sentenced, the court would direct their immediate release, he said.

Earlier their counsel said he was not making complaints about the conduct of the contempt hearing and the focus of this challenge was the content of the committal warrant.

The committal warrant fails to show jurisdiction, fails to set out the basis of the contempt, fails to set out the steps necessary to purge the contempt and reflects only the punitive aspect of the court’s decision, he said. On those and other grounds, the detention was “bad”.

The four were required to stay at least 20 metres away from workers engaged in installing water meters but the order contained no details of whether or not they failed to do so, he said.

A detaining instrument must be clear on its face so the person affected knows the precise terms but this committal warrant failed to either convey the coercive aspect of the court’s decision or the intention of the sentencing judge, he submitted.

The order must carry the authority of the issuing body – in this case the High Court – and the issuing judge, Mr Justice Gilligan, but it did not, he added. There was “a complete failure” to conform to the order actually made by the High Court.

The Supreme Court had in several decisions said that errors on the face of orders formed a legitimate basis for proceedings challenging the lawfulness of a person's detention, he added.

Opposing the application, Sean Gillane SC said the four were sentenced persons who were found guilty and there was no complaint about the procedure which had led to that. Nor had they appealed against the findings, he added.

There was an “unreality” to the argument for release as there was “no sliver of injustice” here, he said. This application was “technical to the point of being opportunistic” and related to “paperwork”.

The warrant specifically reflects two of the protesters were jailed for 28 days and two for 56 days, he said. It was also clear Mr Justice Gilligan had indicated the door of the court would remain open to the protesters should they decide to purge their contempt.

He accepted the document did not refer to Mr Justice Gilligan but said it did refer to the High Court.