[2018] IEHC 333
THE HIGH COURT
[2018 No. 7 SSP]
IN THE MATTER OF THE CONSTITUTION
AND
IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS
AND/OR
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION
BY
FRANK WARD AT PRESENT IN CUSTODY IN THE MIDLANDS PRISON
(APPLICANT)
JUDGMENT of Mr. Justice David Barniville delivered on the 8th day of June, 2018
1. The applicant is at present in custody in the Midlands Prison in Portlaoise, Co. Laois.
2. On 31st October, 2007 the applicant was sentenced to a period of life imprisonment by the Dublin Circuit (Criminal) Court in respect of his conviction on charges of:-
3. On 16th January, 2012 the Court of Criminal Appeal quashed the sentence of life imprisonment imposed on him by the Circuit Court on 31st October, 2007 and imposed in lieu thereof a sentence of twenty years imprisonment in respect of the two counts and directed that the sentences run concurrently with each other from 6th October, 2003. The warrant of the Court of Criminal Appeal was addressed to the Governor of Mountjoy Prison and directed the Governor to take the applicant into custody at Mountjoy Prison.
4. The applicant wishes to apply for an enquiry into the legality of his detention in the Midlands Prison pursuant to Article 40.4.2 of the Constitution and/or for an order of habeas corpus. He is not legally represented. This is the latest of many such applications brought by the applicant, the most recent of which was dealt with by the High Court (Meenan J.) in a judgment delivered on 23rd March, 2018.
5. So far as it is possible to discern from the material put before the court by the applicant for the purpose of this application, the applicant appears to be relying on a number of different grounds in support of his application for an enquiry pursuant to Article 40.4.2 of the Constitution and/or for an order of habeas corpus. However, the material put by the applicant before the court is difficult to follow (both by reason of the applicant’s handwriting and by reason of what the applicant actually says). The application is verbose and rambling. Notwithstanding all of this, I believe that I have been able to ascertain the nature of the complaint which the applicant now makes in respect of the validity of his detention in the Midlands Prison.
6. The applicant relies in support of his application on a signed statement which is undated and unsworn. The applicant has deliberately crossed out the oath on the front page of the form of affidavit to be used by a prisoner who wishes to apply for an enquiry in respect of the legality of his detention or for an order of habeas corpus where that prisoner is not legally represented. The applicant has replaced the word “oath” with the words “written complaint”. I shall refer to the applicant’s “written complaint” for the purpose of his application as the “statement”. The statement was received by the Registrar of the High Court on 16th May, 2018 and acknowledged by the Registrar on 30th May, 2018.
7. Although judgments on previous applications made by the applicant record the fact of his conviction and sentence by the Dublin Circuit (Criminal) Court on charges of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997, the applicant’s statement in respect of this application only refers to his sentence on the count of causing serious harm.
8. So far as I can discern from the applicant’s statement, the grounds on which the applicant now contends that his detention in the Midlands Prison is unlawful are:-
(1) He has been sentenced to “internal exile” in the Midlands Prison (on being transferred some years ago from Mountjoy Prison in Dublin to the Midlands Prison in Portlaoise and that this has come as a “monumental culture shock” to him;
(2) Such “internal exile” has been achieved by executive order “without warning or consultation” and without any judicial order;
(3) By sending the applicant to “internal exile”, his committal warrant has been set at nought as his confinement is now outside the geographical jurisdiction of the original sentencing judge; and
(4) This “internal exile” is in breach of Articles 5 and 7 of the European Convention on Human Rights (ECHR).
9. I am not satisfied that the applicant has raised any basis for challenging the legality of his detention in the Midlands Prison or that he has advanced any basis on which an enquiry should be directed under Article 40.4 of the Constitution or a conditional order of habeas corpus should be made. The grounds advanced by the applicant are, in my view, spurious and the manner in which the applicant has articulated those complaints demonstrate that they are utterly unmeritorious and are frivolous and vexatious. I set out below my reasons for this conclusion in the context of each of the grounds advanced by the applicant.
(1) “Internal Exile”
10. The applicant claims that he has been unlawfully detained since 2010. I am assuming that this is the date on which the applicant was transferred from Mountjoy Prison in Dublin to the Midlands Prison in Portlaoise. The applicant submits that his detention in the Midlands Prison amounts to “internal exile” and that it is a “monumental culture shock” for him. He says that he has been sent to a county which is “culturally foreign and alien” to him where the people are “GAA supporters to a child”. He claims that he has been sent into “isolated exile”.
11. As noted above, it appears that the applicant has been detained in Midlands Prison since 2010. In any event, it is clear from previous judgments of the High Court that the applicant has been in Midlands Prison since at least 2012 (see Frank Ward v. Governor of Midlands Prison (Unreported, High Court, Birmingham J., 2012) (2012 No. 937 SS). Given that the applicant has been detained in Midlands Prison for so many years, it is surprising that this particular complaint is only now being made by the applicant. In any event, in my view, the complaint has no basis whatsoever. There is a clear statutory power on the part of the Minister to transfer a prisoner from one prison to another during the term of his or her imprisonment. This statutory power is contained in s. 17(3) of the Criminal Justice Administration Act, 1914 (as modified by s. 43 of that Act and as adapted by s. 11 of the Adaptation of Enactments Act, 1922). Section 17(3) of the 1914 Act (as so modified and adapted) provides:-
“Prisoners shall be committed to such prisons as the Minister for Justice may from time to time direct; and may on the like direction be removed therefrom during the term of their imprisonment to any other prison.”
12. The scope of the power of the Minister under this section has been considered in a number of cases, most notably by the High Court in Dempsey v. Minister for Justice (Unreported, High Court, Morris J., 21st January, 1994). In that case, describing the statutory power contained in s. 17(3) of the 1914 Act, Morris J. stated as follows:-
“The transfer of prisoners from one prison to another is a statutory discretionary power performed by the Minister. In the exercise of this power she has very wide discretion. This discretion is conferred in the broadest possible terms.” (per Morris J. at pp. 5-6).
13. This power was also considered by the High Court (Humphreys J.) in Walsh v. Governor of Wheatfield Place of Detention [2017] IEHC 680 where Humphreys J. considered s. 17(2) of the 1914 Act and held that committal to one prison is committal to any provided that the Prison Acts apply. They clearly do in the case of the Midlands Prison.
14. Article 40 applications based on the transfer from one prison to another were considered in a number of cases by Irvine J. She refused to direct an enquiry in each of the cases. In Campion v. Governor of Cork Prison [2011] IEHC 398, Irvine J. referred to the provisions of s. 17 of the 1914 Act and stated:-
15. Similarly, in Brady v. Governor of the Midlands Prison [2011] IEHC 295, Irvine J. considered the provisions of s. 17 of the 1914 Act and stated as follows:-
“12. The applicant further complains in the present proceedings that as the warrant for his detention is directed to the Governor of Mountjoy Prison that he has grounds to argue that his detention is unlawful because he is presently held in the Midlands Prison. In this regard I am satisfied that these facts do not give the applicant any legal basis to support his present application for an inquiry into the lawfulness of his detention. The transfer of prisoners from one prison to another is a matter for the executive and not for the courts. Any such transfer may be exercised by the Minister for Justice, Equality and Law Reform pursuant to s. 17 of the Criminal Justice Administration Act 1914, and in such circumstances the Governor of the prison to which the transfer is made becomes his new custodian. There is no evidence before this Court that a transfer order was not made in accordance with the said provision.”
16. While the applicant does not question the power of the Minister to transfer him out of Mountjoy Prison, he claims that he has never been given sight of any transfer order. He further complains about his transfer from a prison in Dublin to a prison outside Dublin.
17. I am satisfied that there is no basis whatsoever for the applicant’s complaint. I am assuming that the transfer took place back in 2010. The applicant could have asked for sight of the transfer order at that stage. The Minister has a wide power under s. 17 of the 1914 Act to transfer a prisoner from one prison to another. That power is not confined to the transfer of a prisoner from one prison in a county to another prison in the same county. The section empowers the Minister to transfer a prisoner from a prison in one county to a prison in another county such as in the present case. I have no reason to believe that a transfer order was not made in accordance with s. 17 at the time of the applicant’s transfer. The applicant has adduced no evidence to the contrary.
18. The applicant’s apparent distaste for the people of Co. Laois and their sporting and cultural interests is not a legal basis for challenging the validity of his detention.
19. In the circumstances, I am not satisfied that this ground of challenge to the validity of the applicant’s detention in the Midlands Prison has any validity whatsoever.
(2) No Warning or Consultation or Judicial Order
20. The second ground on which the applicant seeks to challenge the validity of his detention in the Midlands Prison is that his “internal exile” was effected by an executive order “without warning or consultation” and without any judicial order. In my view, this ground of challenge equally has no merit having regard to the provisions of s. 17 of the 1914 Act which I referred to in my consideration of the first ground of challenge raised by the applicant. It is clear that under that section it is open to the Minister to transfer a prisoner from one prison to another. The discretion conferred on the Minister is extremely wide. There is no statutory requirement to warn or consult. There is no requirement for any judicial intervention as the power is one exercisable by the Minister. Nor am I satisfied that the principles of natural and constitutional justice would have applied to the transfer decision or would have required any consultation with the applicant prior to his transfer. In a similar situation, the High Court and Supreme Court held in The State (Boyle) v. Governor of Curragh Military Detention Barracks [1980] ILRM 242 that the power to transfer prisoners to military custody under s. 2(3) of the Prisons Act 1972 was an administrative power and there was no obligation to disclose to the prisoner the reasons on which the relevant opinion under the section was based.
21. While the Supreme Court in F.X. v. Clinical Director of the Central Mental Hospital & Anor [2014] IESC 1 and in Ryan v. Governor of Midlands Prison [2014] IESC 54 held that the remedy of Article 40.4.2 would lie where there has been an absence of jurisdiction or a “fundamental denial of justice” or a “fundamental flaw”, I do not believe that it can be said that the transfer of the applicant from Mountjoy Prison to the Midlands Prison occurred without jurisdiction or amounted to a “fundamental denial of justice” or involved a “fundamental flaw”. In those circumstances, in my view, there is no basis whatsoever for this ground of challenge to the validity of the applicant’s detention in the Midlands Prison.
22. I am not satisfied that the applicant’s transfer engaged any fundamental right on the part of the applicant. There was nothing unfair or contrary to the applicant’s fundamental rights in transferring him from Mountjoy Prison to the Midlands Prison notwithstanding that the people of Co. Laois may be “GAA supporters”. Nor is there any basis for the applicant’s complaints of unfair geographical distance from his family and friends. There are excellent road and rail links from Dublin to Portlaoise.
(3) Geographical Jurisdiction of Sentencing Judge
23. Under this ground of challenge, the applicant contends that by sending him into “internal exile” in the Midlands Prison in Portlaoise, the applicant’s committal warrant has been set at nought as his confinement is now outside the geographical jurisdiction of the original sentencing judge. This ground of challenge similarly has no merit. The original sentence imposed by the Dublin Circuit (Criminal) Court was quashed and replaced by a sentence of a term of imprisonment of twenty years by the Court of Criminal Appeal. The applicant is now serving that sentence. While the warrant issued by the Court of Criminal Appeal directed the applicant to be taken into custody at Mountjoy Prison, once in custody, the provisions of s. 17 of the 1914 Act applied and it was open to the Minister to transfer the applicant from Mountjoy Prison to the Midlands Prison. It is immaterial that the Midlands Prison is outside the geographical jurisdiction of the Dublin Circuit (Criminal) Court.
(4) Alleged Breach of Articles 5 and 7 of the ECHR
24. The final ground of challenge made by the applicant is that his detention in the Midlands Prison is in breach of Articles 5 and 7 of the ECHR. In my view there is no basis whatsoever for this ground of challenge either.
25. The applicant alleges a breach of Article 5 of the ECHR. Article 5 concerns the “right to liberty and security” and provides at Article 5(1) that:-
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:-
(a) the lawful detention of a person after conviction by a competent court ...”
The applicant claims that he was not actually convicted and that his detention in “internal exile” was never ordered by a competent court. Leaving aside the fact that it is clear from cases such as McD v. L. [2010] 2 IR 199 and M.D. (a minor) v. Ireland [2012] 1 I.R. 697 that the ECHR does not have direct effect in Irish law (whether by virtue of the European Convention on Human Rights Act, 2003 or otherwise) and that the ECHR does not of itself provide a remedy at national level for persons whose rights have allegedly been breached by reference to the provisions of the Convention, there has in any event been no breach of Article 5(1)(a). The warrant of the Court of Criminal Appeal dated 16th January, 2012 clearly refers to the applicant’s conviction at the Dublin Circuit (Criminal) Court on 31st October, 2007 on the charges referred to earlier. The warrant further provided for the applicant’s detention at Mountjoy Prison following that conviction. Thereafter, the Minister had a statutory discretion to remove the applicant from Mountjoy Prison to the Midlands Prison. There has been no breach of Article 5(1)(a).
26. The applicant further alleges a breach of Article 7(1) of the ECHR. First of all, as noted above, the Supreme Court has confirmed that the ECHR does not have direct effect in Irish law. Second, in any event, there has been no breach of Article 7(1) of the ECHR. The applicant alleges that Article 7(1) is breached in that a “heavier penalty” has been “imposed” on him “than the one that was applicable at the time the criminal offence was committed”. This complaint is without any factual or legal basis. No “heavier penalty” has been imposed on the applicant than the one applicable at the time he committed the offences for which he was convicted and sentenced. The applicant has been and continues to serve the sentence of twenty years imprisonment imposed by the Court of Criminal Appeal. The fact that he has been transferred from one prison to another does not amount to a “heavier penalty”. Therefore, even if it were open to the applicant to rely directly on Article 7(1) of the ECHR (and it is not), there has in any event been no breach of that provision.
27. For these reasons, I refuse the applicant’s application.
