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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rice v Mangan [2004] IEHC 152 (30 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/152.html Cite as: [2004] IEHC 152, [2009] 3 IR 1 |
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THE HIGH COURT
HC 258/04
[No. 2004/192JR]
BETWEEN
OWEN RICE
APPLICANT
-and-
JUDGE JOSPEH MANGAN
RESPONDENT
-and-
THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY
JUDGMENT of O'Neill J. delivered the 30th day of July 2004.
In these proceedings the applicant challenges by way of judicial review the order of the respondent made on the 12th February 2004 whereby the respondent either varied the applicant's bail terms so as to impose a complete exclusion from the County of Clare on him or alternatively committed the applicant to prison for his refusal to indicate compliance or undertake not to enter the County of Clare. Leave was granted to the applicant to pursue relief by way of judicial review including an order of certiorari of the foregoing order of the respondent by order of Herbert J. dated the 8th March 2004.
FACTUAL BACKGROUND
The undisputed averments in the affidavit of the applicant sworn on the 15th day of March 2004 reveal as follows:
The applicant was arrested on the 6th December 2003 by members of An Garda Síochána and charged with the offences of dangerous driving and obstruction of a garda under s. 19 of the Criminal Justice (Public Order) Act, 1994. He was brought before the District Court at Tulla in the County of Clare which was due to sit at 7 p.m. He had arranged for legal representation for that time. The applicant had arrived earlier in garda custody. The respondent decided to sit at an earlier time when the applicant's solicitor was not present, to which the applicant objected. Nevertheless the respondent proceeded and the applicant was released on bail of €5 without any conditions attached and was remanded to Ennis District Court on the 18th December 2003.
On the 7th December 2003 the applicant was arrested by members of An Garda Síochána and released without charge.
On the 18th December 2003 at Ennis District Court the applicant was charged with public order offences including further offences under s. 19 of the 1994 Act. On that occasion the bail granted to him on the 6th December was extended without any objection from the gardaí and the applicant was remanded on these charges to the 8th January 2004 at Shannon District Court. When the matter came up at Shannon District Court on the 8th January 2004 he was further remanded on the same bail terms to the 12th February 2004 at Shannon District Court. The applicant at all times intended to fully contest the charges.
The applicant had arranged to be represented on the 12th February 2004 by Ted McCarthy, Solicitor. He was unable to attend on that date but arranged for the applicant to be represented by Rachel Dobson, Solicitor. Difficulties arose between the applicant and Ms. Dobson and the applicant decided to dispense with her services and to represent himself. When the applicant's case came up the applicant made an application for discovery of documents and complained that the State had failed to provide documentation that it had previously been ordered to furnish. The respondent requested the gardaí to look into this and deal with it and then queried what the applicant's bail conditions were. The applicant informed the respondent that no conditions had been imposed apart from a payment of €5 which he already had paid. Thereupon the respondent proceeded to write down what the applicant believed were to be details of his next remand but then the respondent stated as follows "the bail condition was to stay out of County Clare".
The applicant avers that no application of any kind had been made by himself or the prosecuting garda in relation to bail and he thereupon protested the imposition of this condition to the respondent and asked why he should have to stay out of County Clare; to which the respondent replied that if he would not accept the condition he would have to be put in prison. Upon the applicants refusal to comply with this additional condition the respondent and indicated he was refusing bail and was committing the applicant to Limerick prison where he was remanded until the 5th March 2004.
On the 18th February 2004 when the applicant was next before Corofin District Court, he asked the respondent the reason for the imposition of the aforementioned condition but the respondent refused to provide a reason.
The applicant next appeared before Ennis District Court on the 27th February 2004 when the prosecution applied that he be further remanded in custody. He avers that the respondent confirmed that the condition he had imposed in relation to his being excluded from County Clare was imposed on the initiative of the respondent. The respondent asked him to say yes or no as to whether he would agree to stay out of County Clare and when the applicant asked for a reason for this the respondent refused to give any, other than to state that other people had been convicted of breaking the law at protests. It would appear that Inspector Kennedy of An Garda Síochána intervened and informed the court that the applicant was a active member of the anti Iraq war movement and that he had been at all protests at Shannon airport. He also stated that the applicant had been "in and around the area of the airport at various times". He expressed the belief that the applicant was "intent on causing damage to US aircraft at the airport, which was the main aim of the anti war movement at Shannon". He further told the court that there was an extensive security operation at Shannon and that he believed that the applicant was intent on breaching security at Shannon. He further told the court that he believed that the applicant was an organiser of activities within the anti war movement. Inspector Kennedy stated that the applicant should be excluded from County Clare and that it was necessary to exclude him from the County and that it was more "practical" to exclude him from the entire County as opposed to a certain distance from the airport as the boundaries of the county are clearly marked on the roads. He also stated that the applicant was from Newry and had no family or business interest in County Clare and that he had no lawful business there and therefore that the bail conditions were neither unfair nor prejudicial to him.
The applicant complains that the court was not informed of any circumstances or change of circumstances that might influence the court or justified a change in his bail conditions and no application was made by any party for a change in his bail conditions.
The applicant asserts that he is innocent of the charges that are laid against him and wishes to exercise his right to be in County Clare for many reasons and because he has certain ties there. He also contends that none of the offences with which he is charged are "serious" offences as defined in s.2 of the Bail Act, 1997.
On the 25th February 2004 the applicant made an application to the President of the High Court for an inquiry under Article 40.4 of the Constitution into the legality of his detention. This application was either refused or determined against the applicant. On the 5th March 2004 the applicant made a fresh application either for an inquiry under 40.4 of the Constitution and an order of habeas corpus and also in the alternative applied for leave to apply for judicial review. His application was heard by Herbert J. late on Friday 5th March 2004. In order to remove some of the urgency from the matter, that would have existed if the applicant remained in custody over the weekend Herbert J. decided to grant the applicant bail in the habeas corpus application on less onerous terms than had been imposed in the District Court. Thus the total exclusion from the County of Clare was varied on the 5th March 2004 to requiring the applicant to "refrain from attending at the following place that is an area within the following boundary . . . a line drawn from Newmarket-on-Fergus to Bunratty and Bunratty to the sea".
In the meantime the applicant had initiated an application for bail to the High Court sitting at Cloverhill and this application was due for hearing on Monday the 8th March 2004. Herbert J. directed that his alteration of the bail terms in the habeas corpus application should be deemed to resolve that appeal in order to avoid unnecessary duplication and potential conflict. The final details of the bail were to have been determined by Herbert J. on the 8th March but because of a difficulty experienced with Garda witnesses the matter was not dealt with until Wednesday 10th March 2004. By his order of the 10th March 2004 Herbert J. substituted the foregoing bail condition with an order requiring the applicant to refrain from attending within 1km from the perimeter fence of Shannon Airport and 1km from the low tide mark on the estuary side of Shannon Airport.
The proceedings came on before me first on the 5th July 2004 in order to deal with the respondents contention that the proceedings were a moot because the order of Herbert J. made on the 10th March 2004 had the effect of granting in substance to the applicant the relief which he sought and as the order of Herbert J. dealing with bail was not expressed to be within these proceedings but was expressly a determination of the applicants appeal against the bail order in the District Court, the applicant had obtained relief by this processes of appeal and hence relying upon the authority of the case of The State (Roche) v. Delap [1980] I.R. 170 and also the case of Buckley v. Judge Brian Kirby and the DPP [2000] 3 IR 431, relief by way of judicial review should be refused, the matter having become moot.
Against this it was submitted by Mr. Forde for the applicant, that the bail granted by Herbert J. was within the confines of these proceedings only and in any event the issue as to whether or not the respondent had any jurisdiction to vary the applicants bail conditions remained outstanding for determination.
I ruled against the respondent on this matter on the basis that it would be wholly illogical if part of the orders which gave leave to apply for judicial review had the effect of rendering the judicial review application a moot and I concluded that it could not have been intended by Herbert J. that such would be the consequence of his orders.
The full judicial review hearing came on before me then on the 8th day of July 2004.
The case essentially made by the applicant was that the responded had no jurisdiction to alter the applicants bail conditions without any application in that behalf being made either by the applicant or by the prosecuting authority; that in any event if there was to be a change in the applicants bail conditions, fair procedures required that he should have been put on notice of any such application and that he should have been given an opportunity to meet any such application and in particular should have been given an opportunity to have had legal representation for that purpose. It was further submitted that there was no statutory remit for the imposition of a condition involving the exclusion of the applicant from the entire County of Clare and that the County of Clare could not be said to be a place within the meaning of s.6(1)(b)(iv) of the Bail Act, 1997.
For the respondent it was submitted by Mr. O'Higgins that the respondent did have ample jurisdiction by virtue of sections 22 and 23 of the Criminal Procedure Act, 1967 to do what was done and if there was an error it was one which was within jurisdiction and not amenable to judicial review. It was further submitted by Mr. O'Higgins that s.6 (1)(b) both in it's generality and also in the specific provision in s.6(1)(b)(iv) gave jurisdiction to the District Court to impose the kind of exclusion imposed, and that the word "place" in s.6(1)(b)(iv) was of such wide import as to include the entire of a County. It was further submitted by Mr. Higgins that having regard to the fact that an order was made by Herbert J. which determined the applicants appeal against the bail order, that it is not now open to this court to alter or interfere with the order of a judge of equal jurisdiction and hence an order of certiorari made now would be fruitless, the order in question having been in effect replaced on appeal by the order of Herbert J. Hence it was submitted that this court in those circumstances should not exercise its discretion to grant the relief sought in these proceedings. Mr. O'Higgins submitted that it was well settled that where the granting of the relief sought in judicial review proceedings would not or could not alter the rights of or the position of the contending parties, the court should refuse to exercise its discretion in favour of the granting of relief the relief, in question being superfluous in the circumstances.
DECISION
Whilst a central part of the applicants complaint in these proceedings arises out of what he perceived to be the imposition upon him of the condition which excluded him from the County of Clare, to a very large extent his concern in that regard would appear to be misplaced. The facts as revealed in the applicant's affidavit indicate that in fact the District Judge did not impose such a condition but upon encountering the applicants objection to it or an indication of an unwillingness to be bound by it he did not impose that condition but in fact revoked the applicants bail. Hence the applicant was committed to prison.
Thus a consideration as to whether or not the respondent had a jurisdiction to impose such a condition could be said to be moot. However the root of the applicant's complaint be it in relation to this condition or in relation to the revocation of his bail is his submission that the respondent had no jurisdiction at all to interfere with his bail without an application being made by either the prosecution or indeed the applicant himself.
I would not agree with this submission of the applicant. There is nothing in my view either in sections 22 or 23 of the Criminal Procedure Act, 1967 or in the Rules of the District Court which either expressly or by necessary implication prevent a District Judge from altering bail conditions or indeed revoking bail on his own motion. I would be of opinion that circumstances can occur in the course of proceedings which would justify a District Judge altering bail conditions or revoking bail in circumstances where no application for that was theretofore made. A conclusion therefore that a District Judge did not have this jurisdiction would be wrong.
Whilst in rare circumstances a persons bail conditions might be altered or indeed the bail itself revoked without prior notice of that being given to the person concerned, it can safely be said that no such circumstances existed in the applicant's case. I am quite satisfied that in this case the applicant should not have been faced with what was intended by the respondent to be a alteration of his bail conditions but which turned out to be a revocation of his bail without proper notice so as to have enabled him to be prepared and to have legal representation present. In proceeding to deal with the applicants bail as is set out in the applicants affidavit I am quite satisfied that the respondent breached the applicant's right to fair procedures.
As to the condition excluding the applicant from the County of Clare in my view there is a jurisdiction in s.6 (1)(b)(iv) to impose such a condition. In my opinion the word "place" in its natural and ordinary meaning can embrace a County. In an appropriate case a restriction of the kind mentioned by the respondent might properly be imposed.
This brings me to the final issue which is whether of not in regard to the order of Herbert J. I should exercise my discretion to grant the relief claimed in these proceedings and specifically an order of certiorari in relation to the order of the respondent made on the 12th February 2004.
As set out earlier the applicant did appeal that order and that appeal was due to come on before the High Court in Cloverhill. There is no doubt however that Herbert J. made a bail order which determined the applicants application in relation to bail and that is now a valid and subsisting order of the High Court which has replaced the order of the respondent which is impugned in these proceedings. That being so the rights of the applicant cannot be affected by an order certiorari of the order of the respondent made the 12th February 2004. Bail is now regulated by the order of Herbert J. made the 10th March 2003.
It can therefore be said that the relief which is claimed in these proceedings is now superfluous in that it could not alter the applicant's position in regard to his bail.
That being so I do not think that I should exercise my discretion to grant the relief claimed in these proceedings.
Approved 29th day of July 2004
Judge O'Neill
