Judge says he was obliged to free water protestors

Mr Justice Nicholas Kearns says he was ‘most unhappy at the idea of a procedural technicality trumping substantive justice’

The President of the High Court has said he was obliged to free four anti-water charges protestors from prison last Monday but was "most unhappy at the idea of a procedural technicality trumping substantive justice".

Mr Justice Nicholas Kearns has given detailed reasons for his decision to free the four, who were jailed last month for contempt of court orders, restraining interference with water meter installers.

The judge said he had no discretion but to release the four last Monday due to errors in the committal warrant grounding their detention but was “most unhappy at the idea of a procedural technicality trumping substantive justice”.

That was particularly so because all the parties agreed the High Court judge who jailed the four, Mr Justice Paul Gilligan, conducted that hearing with "exemplary fairness" and no appeal was brought against his order.


The four had applied under Article 40 of the Constitution for their release on grounds their detention was unlawful due to errors in the committal warrants, he noted.

The “special place” of Article 40 in the Constitution should not lead to a situation where “technical” errors in a document can be relied on in every case to set aside committal orders when there was no prejudice or injustice to persons properly convicted and sentenced, he said.

Hearings under Article 40 should ideally permit rectification of such errors during the course of those hearings, he said. The status of Article 40 would be “enhanced by such an approach”.

He was giving his reasons for freeing Paul Moore, along with Damien O'Neill, Bernie Hughes and Derek Byrne. They were jailed on February 19th for contempt of orders restraining interference with water meter installation works by GMC Sierra.

Mr Moore, Mount Olive Grove, Kilbarrack, and Mr O'Neill, Greenwood Park, Coolock, were jailed for 56 days while Ms Hughes, McKelvey Avenue, Finglas, and Mr Byrne, Streamville Road, Donaghmede, were jailed for 28 days.

In his judgment on Mr Moore’s case, which also relates to the other three, the judge said the committal order put forward by the Mountjoy Prison Governor as the sole basis for grounding the detention of the four did not comply with the relevant court rules governing such warrants.

There had been no attempt by the State respondents to join the February 19th High Court order of Mr Justice Gilligan, which directed the four be jailed for contempt, to the “bare” warrant certified as the grounds for detention, he noted. It had been stated no benefit would, on the facts of the cases, be derived from doing that.

In those circumstances, he had to consider the warrant alone and considered a number of omissions rendered it invalid.

The relevant court rules state a committal order “shall direct” that the person against whom the order is directed “shall be lodged in prison until he purges contempt . . . and shall be in the Form No 12,” he said.

The committal order in this case departed from Form No. 12 and was changed in format with the result it failed to prescribe a method whereby contempt can be purged, the judge said. The form had been altered to a form appropriate to an “exclusively punitive order”.

While the rules permit forms to be modified, the portion of the form providing for the purging of the contempt was stripped out of the committal order, he said. This was a “decisive” point because that error could be seen as having “significant potential consequences” for the four.

There were omissions of a “significant” type in the committal warrant order, he found. It did not state the dates of the offence of contempt committed, the date of conviction and gave no detail of the form of contempt (failure to remain outside a 20 metre exclusion zone around water meter installation works). It failed to set out particulars of non-compliance or to state what court and particular judge made the order in these cases.

The relevant forms may need updating and modernisation, he added.

The judge noted, in some other challenges to detention on foot of committal warrants, efforts were made on the part of the State respondents to present a new version of the warrants but no such initiative occurred here.

The State, despite the difficulties, had urged the court to exercise its discretion and refuse to release the four but he considered he had no discretion here and must operate within the jurisprudence concerning applications for release under Article 40. That jurisprudence illustrated a detained person was usually entitled to relief where there was an error on the face of the record.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times