Admin Law Habeas Corpus Notes

HABEAS CORPUS - THE ARTICLE 40.4.2 ENQUIRY PROCEDURAL ASPECTS WHAT IS IT • • • • • Specialist JR Concerns freedom of liberty Distinguished from other JR by informality, speed of access, freedom from procedural rules. Associated with periods of turbulence in history - used during united Irishmen uprising in 1790s, war of independence, troubles and even in the water charge controversy. Physical release from detention. THE TWO-PART STRUCTURE: 1. LEAVE - STATEABLE CASE THAT THE DETENTION IS UNLAWFUL Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made:Shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention 2. THE RELEASE ENQUIRY - IS THE DETENTION IN ACCORDANCE WITH LAWAnd the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law BY OR ON BEHALF OF ANY PERSON • • The wording re-incorporates the common law principle of 3rd party intervention on habeas corpus. Applications have been submitted by fathers, mothers, brothers, sisters, children, wives, fellow prisoners, political activists, employers, and employees. The primary rule:It is the detainee who decides whether an application should be submitted or not. It is their right. The State (Burke) v. Lennon [1940] IR 136 Applicant was interned in Arbour Hill prison but had access to lawyers. His brother took the application on behalf of him and the HC said: Gavan DuffyWould not endorse 'an interpretation of article 40.3.2 which would permit an application by a third party where the party detained could make the application himself.' Should not be used indiscriminatelyOnly where detainee cannot Must be practically not in a position to submit the application on own behalf: The State (Harrington) v Garvey, High Court, 14 Dec. 1976Employer allowed to take application on behalf of a detainee who was being assaulted in Garda custody Re Martin Dolphin 1972 (High Court, 27 Jan. 1972) Detainee was admitted to the central mental hospitalThird-party application admissible despite the fact that the detainee, due to his extreme political standpoint refused to recognise the legal system and the courts in principleThe refusal to recognise the courts amounted to an inferred incapacityIncapacity warranted third-party intervention S v HSE 2009, High Court, 11 Feb, 2009.Mother entitled to take application on behalf of a detainee held in isolation as an infectious personNo means of mounting a legal challenge AC v Cork University Hospital [2019] IESC 73The concept of locus standi should be applied relatively liberally in the article 40.4.2 context ➢ Not subject to the same strict requirements as locus standi for third parties generally - e.g. public interest locus standi where the courts are encouraged to be strict. Here, they are encouraged to be liberal TIME AND PLACE • • • • • With normal JR, all applications should be made to the judge assigned to the ex-parte judicial review list on Mondays at 11.30 o'clock. 40.4.2 - no restriction as to the time of day which the applications are permitted to be made. Need not include a statement of grounds. The word 'complaint' is taken quite literally and is not glossed over or qualified. It is literally an informal complaint. Can be submitted verbally or by an unsworn letter Can even be submitted by telephone call by someone other than the complainant e.g. their counsel The informal complaint: The State (Cahill) v Garda Commissioner, Irish Times, 1975 Application made on behalf of detainee being held in garda custody timeGranted by Justice Hamilton sitting at his own home on midnight of Saturday night placeIn the drawing room of a judge's home.Does not have to be in the High Court, in the 4 courts. formatCan be submitted verballyNeed not be on affidavit like JR under order 84 r 20.2 which requires an affidavit which verifies the facts relied on Barry v Waldron High Court, 23 May 1996Application submitted by phone call on behalf of a detainee by their lawyerJudge at the receiving end of the call was in his home'In relation to matters under article 40 of the constitution the judge has no discretion but to sit'Having communicated with the judge by telephone, counsel or his solicitor then arranges for the attendance of a register. O'Dwyer v Governor of Midlands Prison [2010[ IEHC 528Can be submitted to HC by convicted persons by unsworn letter Ryan v Governor of Midlands Prison [2014] IESC 54 The issue was whether the applicant had complied w prison rules so as to qualify for early release. The application (the evidence on why detention is unlawful) was submitted by the prisoner's solicitor which described what the prisoner had told her had happened, as opposed to the prisoner giving the evidence themselves or swearing under oath on an affidavit.This is hearsayIf warranted, HC can admit evidence which might in other proceedings be technically inadmissibleIn habeas corpus applications, it is for the court to order its own procedures in accordance with the constitutional requirements as to fairness of procedures The court may, in circumstances of urgency where the solicitor needs to make an urgent application and there's no opportunity to meet the prisoner and have an affidavit sworn by them, admit the hearsay into evidence ANY AND EVERY JUDGE FOR THE LEAVE APPLICATION • • • • The word any- The applicant is open to choose a judge that is more likely to be sympathetic for example But the word 'every' - is highly significant Can apply notwithstanding that another judge has refused their application for leave This only applies to the leave stage of the application. This is because the article expressly provides for such, whereas the second part does not contain an express right or any such language regulating the substantive hearing. (was removed due to fears of republican prisoners abusing the system, I think) The State (Burke) v Lennon [1940] IR 136 Republican detaineeA deliberately chose Gavan Duffy because he would have been perceived as having republica sympathies. Joyce v Governor of the Dochas Centre [2012] IEHC 32 A had submitted an application for leave to Hedigan J, who found that he'd not raised an arguable case and refused to institute the full enquiry. Then went to Hogan J who held that he was bound the language of 40.4.2The word 'every' means that all judges are bound to hear a habeas corpus application despite the fact it has already been heard or refused by another judgeThis right of perpetual renewal is not absolute. It would simply be farcical to allow an applicant to submit their leave application 36 times (there are now 36 high court judges)The literal words are qualified by the constitutional vale underlying article 34.1: that the courts system be a rational one.Article 34.1 presupposes that the judiciary 'will discharge its constitutional mandate of administering justice in a reasonable, efficient and prompt fashion.'Thus, second application only allowed where: (i) 'Something was overlooked' (ii) New evidence or Abuse of process?'a repeated application with no good grounds might be regarded as abusive.' Is this constitutional? Every judge is quite a peculiar provision so obviously had strong intent behind it. It is obviously practical to interpret the meaning as being qualified by legal reasons, however placing this burdensome qualification - that there was new evidence of some error of law/fact - is quite dramatic considering the explicitness of the provision. AC v Cork University Hospital [2019] IESC 73 Proposal was made that applications for wardship cases be made to the President of the High CourtThis would be unconstitutional in that it'd undermine the word 'any' JR - must be made to specific judge assigned to JR applications SHALL FORTHWITH ENQUIRE Standard of admissibility: The State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550Arguable case Gibney v The Governor of Cork Prison 2019 IEHC 510Stateable case Temporal conditions: 1. Shall forthwith enquire (as to determine whether there should be a hearing) • If it receives a complaint is must immediately enquire 2. Shall order the production of the prisoner on a named day (on which the hearing will occur) • In practice, 'named day' is usually that same day. Habeas corpus hearings are prioritised over all other business generally. S v HSE Infectious person caseApplication made in afternoon. The detainer - manager of hospital - required to produce the prisoner and certificate of justification by 6pm that day The State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550 Initiated at 3pm that day.Directed to produce the certificate of justification at 6pm that dayHC sat at 7pm in order to dispose of app. PRODUCE THE BODY The State (Woods) v Kelly [1969] IR 269

Buy the full version of these notes or essay plans and more in our Administrative Law: Remedies Notes.