In the matter of an application pursuant to Article 40.4.2 of the Constitution of Ireland 1937: Martin McDonagh (applicant/ appellant) v The Governor of Cloverhill Prison (respondent); Patrick McDonagh (applicant/ appellant) v The Governor of Cloverhill Prison (respondent)
Judicial review - Stateside - Habeas corpus - Detention - Validity - Applicants refused bail in district court - Whether a district court judge can refuse a bail application where there is no relevant evidence before him that would have permitted him to refuse bail on the grounds articulated by him - Whether an accused person should be on notice of an objection to a bail application - Whether procedural and other difficulties of the district court hearing invalidated the essential steps in the proceedings - Article 40.4.2 of the Constitution of Ireland, 1937 - Bail Act 1997 section 2.
The Supreme Court (before Mrs Justice McGuinness, Mr Justice Hardiman and Mr Justice Fennelly); judgment delivered January 28th, 2005.
A refusal of bail is rendered unfair if the district court judge gives no consideration to, and makes no finding on, either the objections to bail raised by the prosecution or the question of hearsay raised by the defence, where he refuses bail on what appears to be a ground of apprehension raised solely on his own motion, where there is no relevant evidence before him that would have permitted him to refuse bail on the grounds articulated by him, and/or where there is no indication that he took into account any of the matters set out in the 1997 Act, as he is required to do. An accused is clearly entitled to the presumption of innocence in respect of the offences with which he is charged. It would seem to be an essential matter of natural and constitutional justice that an accused person should be made aware that an objection to bail of so serious a nature, as under s.2 of the 1997 Act, is brought forward by the prosecution and that the accused person is given a proper opportunity, either by means of evidence, or through submissions, to challenge such an objection.
The Supreme Court so held in allowing the appeal and ordering the immediate release of the applicants.
Martin Giblin SC and Niall Nolan BL for both applicant/appellants; Michael Bowman BL for the respondent.
Mrs Justice McGuinness, delivering the judgment of the court, began by outlining the facts of the case and the nature of the appeal before the court. Each applicant had been charged with the offence of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997. Both applicants had appeared before the district court on January 6th, 2005, and as the prosecution opposed bail were remanded in custody. The applicants were dealt with together before the same district court judge, Judge Coughlan. Applications under Article 40.4.2 were made by both applicants to the High Court, whereby an order was sought that they were being detained unlawfully. On January 7th, 2005, McMenamin J., in the High Court, ordered and adjudged that both applicants were being detained in accordance with law. Both applicants appealed that decision to the Supreme Court. Submissions were made on January 17th, 2005, the court allowed the appeal and released the two applicants on that date, but reserved the stating of its reasons until January 28th, 2005.
The facts concerning the proceedings in the district court were set out in detail in the affidavit grounding the Article 40 application, which was sworn by Ms Binchy, solicitor for the applicants. No issue arose as to these facts. Having set out the facts of the charge and having deposed that the offences were prosecuted by Garda Shane Davern, of Coolock Garda Station, Ms Binchy swore that Garda Davern made an application to District Judge Coughlan that the applicants be remanded in custody. Garda Davern grounded his application on firstly, the seriousness of the charge and secondly, on the fear that the witnesses would be intimidated. Garda Davern stated that the charge before the court related to a shooting incident which occurred on New Year's Day in St Dominick's Halting Site in Coolock. He testified that the alleged injured party had suffered injuries including a punctured lung and had possibly lost an eye. He stated that there had been an ongoing feud between two travelling families and he feared that if the applicant was released that the witnesses would be intimidated. He did not specify any persons whom he feared would be intimidated and he did not call any witnesses in this regard. Ms Binchy deposed that she had objected to this evidence on the basis that it was hearsay and asked the presiding judge to disregard it.
Ms Binchy made the application for bail on the grounds that the only objection properly before the court was the seriousness of the charge. She further submitted on behalf of her client that the gardai were satisfied with his identity and address, that his wife had brought his passport, which he was willing to surrender to court, and that he was willing to sign on at his local garda station on a daily basis and to make a cash lodgment. Judge Coughlan refused bail stating that "this is an ongoing feud" and that the test in relation to bail is "whether the man is going to go out and murder someone". He further asked whether "this man is going to go out and assault someone again with a gun".
Ms Binchy submitted to the court that firstly, the testimony by Garda Davern in relation to the ongoing feud formed part of the substance of the charge and was therefore an allegation, and that her client was entitled to the presumption of innocence. She further submitted that this evidence was hearsay. She submitted that the test in bail applications was not whether the accused was "going to go out and murder someone".
She further pointed out that the objections raised by the prosecution were not brought under section 2 of the 1997 Act. Judge Coughlan remanded the applicant in custody to Cloverhill District Court. Since the cases of both applicants were dealt with together the affidavit of Ms Binchy outlining the proceedings concerning the second applicant's application for bail was in similar terms.
Mrs Justice McGuinness said that later that day, January 6th, applications pursuant to Article 40.4.2 on behalf of both applications were made to the High Court. The High Court judge (McMenamin J.) made orders directing the Governor of Cloverhill Prison to produce the applicants before the High Court at 11am the following day and to certify in writing the grounds for their detention. This order was carried into effect, the assistant governor of Cloverhill Prison certifying to the court in the case of both applicants that they were held pursuant to a warrant of the district court held in the County of Dublin dated January 6th, 2005. He exhibited the relevant warrants. No issue arose as to the accuracy of the certificates presented by the assistant governor. The Article 40 applications were heard by the High Court on January 7th, 2005. The Supreme Court was provided with an agreed note of the proceedings which had been approved and signed by the district court judge. Mrs Justice McGuinness noted that the submissions of counsel made in the High Court were, in the main, similar to those submitted to the Supreme Court on appeal. It was held by McMenamin J. that the evidence given by the prosecuting Garda concerning the possible intimidation of witnesses was admissible. In his view that evidence was part of the previous evidence as to the background to the case, that the alleged incident was part of an ongoing feud between members of the travelling community. He further stated that the issue which arose was whether the district judge had acted on hearsay evidence or whether there was evidence on which the court could apply its own opinion in relation to whether bail could be granted.
McMenamin J. referred to People (Attorney General) v O'Callaghan IR 501 and to section 2 of the 1997 Act, which provides that the court might refuse an application for bail by a person charged with a serious offence if it was satisfied that a refusal was reasonably considered necessary to prevent the commission of a further offence. He then referred to matters on which the court might receive evidence under section 2.2 of the 1997 Act. He stated that the issue that fell to be determined, on the basis of the affidavit evidence, was whether the learned district judge had acted in excess of jurisdiction. McMenamin J. was of the view that the evidence submitted to the learned district court judge was admissible and that it was evidence upon which he could act. It was held that the district court judge could apply his own mind on the basis of the information available, so as to identify material before him as would fall under section 2. McMenamin J. described some of the district court judge's statements as being "unusual in phraseology", but stated that this did not indicate that he was applying the wrong test but rather, the correct test phrased in an unusual manner. McMenamin J. held that the decision of the district court judge was justified on the basis on the O'Callaghan case and on the basis of the 1997 Act and he refused both applications.
In their notice of appeal the applicants set out a number of grounds of appeal inter alia, that the learned High Court judge erred in law in not granting a release under Article 40.4.2 of the Constitution, 1937, to the appellant, that the learned High Court judge erred in law or in fact in deeming the detention of the applicant by the respondent to be lawful, that the learned High Court judge erred in law in determining that the test applied by the district court judge on the application by the appellant for bail was correct; that the learned High Court judge erred in law or in fact in determining that the evidence of the prosecuting garda on the bail application in relation to the fear of intimidation of witnesses was admissible and not hearsay; that the learned High Court judge erred in law in determining in the particular circumstances of the instant case that the district court judge could refuse bail under the Act of 1997.
Senior counsel for the applicants emphasised the fact that in the instant case the prosecution did not raise any objection to bail pursuant to section 2 of the 1997 Act and, indeed, had not even mentioned that section to the district court judge. The prosecution had relied on grounds compatible with the judgment of the Supreme Court in the O'Callaghan case. The district court judge's reason for refusing bail, if it did have any legal basis whatsoever, appeared to be based in terms of section 2.1 of the Act of 1997 and had been so interpreted by the High Court judge.
The district court judge, it was submitted, embarked on the course he took solely of his own motion, without any notice to the applicants, and without permitting them to put forward any defence. Counsel for the applicants argued that, owing to the serious consequences of the refusal of bail, namely the deprivation of liberty, accused persons should be put on notice if an objection to bail under section 2 was to be made. This was a generally accepted procedure in the district court and a number of district court judges had put this notice procedure on a formal basis. Counsel drew attention to the terms of section 2(2) of the 1997 Act, under which it was mandatory for the court to take certain matters into account before refusing bail on the grounds set out in section 2(1). None of these relevant matters had even been mentioned by Judge Coughlan, let alone taken into account by him. The test in section 2 could only be applied where there was a finding by the court based on evidence. The court was also reminded that the prosecution had accepted that this was not a "fear of flight" case.
It was also submitted by the applicants that there was a complete absence of the characteristics of natural justice in the district court hearing, and that it was therefore inherently unfair. The argument was put forward that the test adopted by the district court judge was a test not known to the law. It was also argued that the phraseology used was totally contrary to the presumption of innocence. While the applicants accepted that hearsay evidence could be admissible in a bail hearing in the context of a continuation of the narrative background to a case, attention was drawn to the judgment of the Supreme Court in the case of People (DPP) v McGinley 2 IR 408. Keane J., as he then was, held that: "... an applicant for bail should, in general terms at least, be entitled to have the evidence on which the court is being asked to rely given viva voce on oath and tested by cross-examination".
For these reasons, the applicants submitted that the bail hearing in the district court had been a nullity and that the applicants were not held in accordance with the law.
Counsel for the respondent submitted that procedures in bail applications were frequently quite informal. The respondent disagreed with the applicants' submission that a large number of district court judges required that notice be given where an objection was to be raised under section 2 of the Bail Act 1997. It was accepted by the respondent that the learned district court judge's phraseology was unusual, and perhaps somewhat unfortunate, but that of itself did not mean that the district judge had acted outside his jurisdiction. The respondent submitted that the district judge had been entitled to take into account Garda Davern's description of the injuries suffered by the victim of the alleged assault and the allegation of the ongoing feud. It was submitted that the garda's evidence concerning the possible intimidation of witnesses had been open to challenge through cross-examination but that as no such examination had taken place such evidence therefore should be accepted. Counsel for the respondent argued that it was open to a judge, of his own motion, to take into account the test as set out in section 2.1 of the 1997 Act. The respondents referred to the Supreme Court judgment in the case of State (Royle) v. Kelly IR 259 and submitted that the principle stated therein, that even if a trial had been unsatisfactory the matters complained of may not be irregularities or procedural difficulties of a character that would invalidate an essential step in proceedings, be applied to the instant case and were thus not sufficient to procure their release.
Mrs Justice McGuinness accepted the submission of counsel for the respondents that the correct test in the present case was that applied by the Supreme Court in the State (Royle) case wherein it was held that it could not be said that the prosecutor was detained in accordance with law if the irregularities or the procedural deficiencies complained of were shown to be such as would invalidate any essential step in the proceedings leading ultimately to its detention. That case stated that the mandatory provision in Article 40 section 4 sub.-s.2 of the Constitution is that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained "in accordance with the law" is but a version of the rule of habeas corpus which is to be found in many constitutions. The purposes of the test is to ensure that the detainee must be released if - but only if - the detention is wanting in fundamental legal attributes which, under the Constitution, should attach to the detention. The expression "in accordance with the law" is designed to cover these basic legal principles and procedures which are so essential for the preservation of personal liberty under our Constitution that departure from them renders the detention unjustifiable in the eyes of the law. The effect of the guarantee is that unless the High Court (or, on appeal, the Supreme Court) is satisfied that the detention in question is in accordance with the law, the detained person is entitled to an unqualified release from that detention. It is the circumstances of the particular case thatwill usually determine whether or not a detention is in accordance with the law.
Mrs Justice McGuinness then went on to distinguish the actual facts of the Royle case from the facts for the instant case. The facts in that case related to difficulties over the appointment of a legal aid solicitor and the failure to obtain a particular expert witness. The facts in the instant case were very different. At the outset the prosecuting garda had put forward an objection to bail on grounds established as proper within the O'Callaghan case; he drew attention to the seriousness of the charge and alleged that there was a danger of intimidation of witnesses. The applicant's solicitor challenged he evidence of the garda on the grounds that it was hearsay. The district court judge did not appear to give any consideration to, and made no finding on, either the objections to bail raised by the prosecution or the question of hearsay. Instead, he refused bail on what appeared to be a ground of apprehension that either, or both, applicants would "go out and murder someone", "go out an assault someone again with a gun", or "go out and shoot someone". This ground, if ground it was, he raised solely on his own motion. She noted that both applicants had been charged with assault causing harm; neither had been charged with a firearms offence, let alone with manslaughter or murder. Both applicants were clearly entitled to the presumption of innocence in respect of the offences with which they were charged.
Mrs Justice McGuinness said that it was highly improper for the judge to suggest that one of them would "go out and assault someone again". There was no relevant evidence before the judge that would have permitted him to refuse bail on the grounds articulated by him. The fact that the prosecution referred to an alleged ongoing feud did not in any way justify the judge's remarks; still less were these remarks justified by the fact that the applicants were members of the travelling community. Mrs Justice McGuinness said that although the learned High Court judge had described the phraseology used by the district court judge as "unusual" the Supreme Court stated that the matter was considerably more serious. The remarks made by the judge were both improper and entirely wrong in principle. Such remarks should not have been made in the in the context of a bail hearing, or indeed, in any other context.
With regard to the district court judge's ground for refusing bail, Mrs Justice McGuinness held that there was no indication that the learned district court judge had taken into account of any of the matters as set out in s.2.2 of the 1997 Act, as he was obliged to do. Section 2 of the Bail Act, 1997 provides that:
2.1 Where an application for bail is made by a person charged with a serious offence, a court may refuse an application if the court is satisfied that such a refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.
2.2 In exercising its jurisdiction under subsection 1, a court shall take into account and may, where necessary, receive evidence or submissions concerning the nature and degree of seriousness of the offence with which the person is charged and the sentence likely to be imposed on conviction, the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction, the nature and strength of evidence in support of the charge, any conviction of the accused person for an offence committed while he/she was on bail, any previous convictions of the accused person, including any conviction the subject of an appeal (which has neither been determined nor withdrawn) to a court, any other offence in respect of which the accused person is charged and is awaiting trial, and, where it is taken account of one or more of the foregoing, it may also take into account the fact that the accused person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act 1977.
Mrs Justice McGuinness said that section 2.2 is mandatory in its terms. There was no indication in the account of the proceedings before Judge Coughlan that any of the matters set out in subsection 2 were taken into account by the court. Neither evidence nor submissions concerning those matters were received by the court. With respect to the submission that objections under section 2 should be formally initiated, and in practice the prosecution would give notice in advance of the actual bail hearing, Mrs Justice McGuinness noted that there is no provision in either the 1997 Act, nor in the District Court Rules, that such an application should be made on notice in advance of the actual bail hearing. Nevertheless, Mrs Justice McGuinness was of the view that it would seem to be essential as a matter of natural and constitutional justice that an accused person should be made aware that an objection to bail of so serious a nature is brought forward by the prosecution.
In the same way she stated that it is also a matter of natural and constitutional justice that the accused person be given a proper opportunity, either by means of evidence, or through submissions, to challenge such an objection. As none of this occurred in the instant case, Mrs Justice McGuinness held that the proceedings were in essence unfair. It appeared to the court that the procedural and other deficiencies of the hearing before the learned District Court judge in this case were such as would invalidate essential steps in the proceedings leading ultimately to the applicants' detention, and that, therefore, the detention of the applicants was wanting in the fundamental legal attributes which, under the Constitution, should attach to it.
Mrs Justice McGuinness allowed the appeal and ordered the immediate release of the applicants.
Mr Justice Hardiman and Mr Justice Fennelly concurred with Mrs Justice McGuinness.
Solicitors: Shalom Binchy & Company (Dublin ) for both applicants/appellants; the Chief Prosecution Solicitor for the respondent.