Constitutional - Personal Liberty

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Personal Liberty - Introduction

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Art 40.4.1: ‘no citizen shall be deprived of his personal liberty save in accordance with law’

Art 40.4.7: ‘provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person’

Therefore, can only be deprived of liberty in accordance with law.

King v AG: ‘no citizen shall be deprived of personal liberty save in accordance with law- which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Consitution’

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King v AG

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‘no citizen shall be deprived of personal liberty save in accordance with law- which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Consitution’

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MJELR v Fallon

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FACTS: Were Irish courts entitled to enquire into validity of warrants issued under European Arrest Warrant Act 2003?

HELD: S.37(1)(b) provides that surrender to extradition is not permitted if would contravene the Constitution. Therefore, Irish courts obliged, from a constitutional perspective, to examine the validity of such warrants

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Arrest & Detention - Section 4 Criminal Justice Act 1984

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Section 4 Criminal Justice Act 1984, 24 HOURS

-Crime punishable for upwards of 5 years,

-“Proper investigation of the offence” can allow detention for 6 Hours

-Superintendent can extend that to another 6 Hours

-Section 9 CJA 2006 allows Superintendent increase that for a further 12 Hours

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Arrest & Detention - Criminal Justice Act 2007

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Criminal Justice Act 2007: 7 DAYS

-Section 50: Murder involving use of Firearm/Explosive
Murder of Garda or Prison Officer
S. 15 of Firearms Act 1925
S. 15 Non-Fatal Offences Act 97 (Kidnapping w firearm)

-6 Hours (Garda MIC) 18 Hours (Super) 24 Hours (Chief Super)

-72 Hours (Dist Ct) 48 Hours (Dist Ct)

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Arrest & Detention - CJ (Drug Trafficking) Act 1996

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CJ (Drug Trafficking) Act 1996: 7 DAYS

-Reasonable Suspicion of drug-trafficking offence
-6 Hours (Garda MIC) 18 Hours (Chief Super) 24 Hours (Chief Super)
-72 Hours (Dist Ct) 48 Hours (Dist Ct)

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Arrest & Detention - Offences Against the State Act 1939

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Offences Against the State Act 1939: 60 Hours

-12 Hours(Chief Super) 24 Hours (Chief Super) 24 Hours (Dist Ct)

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People (DPP) v Quilligan (No.3) (1993)

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FACTS: challenge to S.30 OASA

HELD: Sup Ct focused on other protection afforded to the ‘person in detention’.

Therefore appears that if person enjoys some protections, Court will hold that period of detention is not unlawful.

Finlay C.J. :

Where a person has been arrested pursuant to s. 30 of the Act of 1939 he has got, in the view of this Court, the following protections

(1) If the arresting garda does not have a bona fide suspicion based on reason of one or other of the matters provided for in the section the arrest is unlawful and he may be released by an order pursuant to Article 40 of the Constitution ...

(2) At the time of the arrest the suspect must be informed, if he does not already know, of the offence pursuant to the Act of 1939 or scheduled for its purposes, of which he is suspected, otherwise his arrest will be unlawful . ..

(3) The person detained has, during his detention, a right to legal assistance, and the refusal to grant it to him when reasonably requested can make his detention unlawful . ..

(4) The right to medical assistance .. .

(5) The right to access to the courts . . .

(6) The right to remain silent and the associated right to be told of that right . . .

(7) The Judges' Rules with their provisions in regard to the giving of cautions and the abstention from cross-examination of a prisoner apply to a person in detention under s. 30 .. .

(8) A person detained under s. 30 must not, in the words of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495,

"be subject to any form of questioning which the courts would regard as unfair or oppressive, either by reason of its nature, the manner in which it is conducted, its duration or the time of day or of its persistence into the point of harassment, where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned" .

(9) If the detention of a person arrested under s. 30 is extended by a Chief Superintendent for a further period after the first period of twenty-four hours, he must entertain also the necessary bona fide suspicion of the suspect that justified his original arrest and must be satisfied that his further detention is necessary for the purposes provided for in the section . ..

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A.N v Governor of Cloverhill Prison

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FACTS: S.9 Immigration Act 203, allowed Garda arrest and detain person who had not made reasonable efforts to identify themselves, or who were suspected of having forged identity documents

HELD: A number of other protections existed, therefore constitutional

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Prisoners' Liberty

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State (McDonagh v Frawley): person in custody cannot expect to enjoy same rights as those not imprisoned

Murray v AG: prisoners only entitled to such rights as are permissible for the prison to provide, cannot place unreasonable demands on prison

Gilligan v Governor Portlaoise Prison: there is no ‘iron curtain’ between the Constitution and prisoners. But, prisoners must recognise that imprisonment means loss of certain rights and curtailment of others.

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State (McDonagh) v Frawley (1978)

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Person in custody cannot expect to enjoy same rights as those not imprisoned

Prisoners do enjoy right to medical attention

O' Higgins C.J. held that:

While so held as a prisoner pursuant to a lawful warrant, many of the applicant's normal constitutional rights are abrogated or suspended. He must accept prison discipline and accommodate himself to the reasonable organisation of prison life laid down in the prison regulations.

The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of hts hberty save "in accordance with law" does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may said to be wanting in due process of law . .. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or tmpropnety, or even that jurisdiction has been inadvertently exceeded .. . The confinement of orders of release under Article 40, s. 4, to cases where the detention is not "in accordance with the law" in the sense I have indicated means that applications under Article 40, s. 4, are not smtable for the judicial investigation of complaints as to conviction sentence or conditions of detention which fall short of that requirement. '

Higgins CJ gave an example showing the outer extremes - where a sentence to life imprisonment had incorrectly been imposed rather than a sentence to penal servitude for life, this was merely a technical fault and did not render the detention illegal. However if a sentence of imprisonment was imposed where a fine was the authorized punishment' this would be a "default of fundamental requirements". '

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Murray v AG (1985)

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Prisoners only entitled to such rights as are permissible for the prison to provide, cannot place unreasonable demands on prison

Those rights which may be exercised by a prisoner are those (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or (b) which are compatible with the reasonable requirements of the place in which he is imprisoned, or to put it another way, do not impose unreasonable demands on it.

Costello J concluded it would place unreasonable demands on the prison service, to require prison authorities to make facilities available, within the confines of the prison, to enable all prisoners who fall within this category to exercise their right to beget children. If this is so, then prisoners in this category, including the plaintiffs, cannot validly complain that the exercise of their rights has been unconstitutionally restricted.

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Gilligan v Governor Portlaoise Prison (2001)

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There is no ‘iron curtain’ between the Constitution and prisoners. But, prisoners must recognise that imprisonment means loss of certain rights and curtailment of others.

McKechnie J. summarised the position in as being that "[t]here is no iron curtain between the Constitution and the prisons in the Republic" and he held that:

(a) A convicted person differs from a person untouched by the legal process.
(b) A convicted person differs from a person arrested and detained simpliciter.
(c) A convicted person-
Must accept discipline and accommodate himself to prison life,
Must accommodate himself to a reasonable organisation of that life,
Must understand that prison life is a recognised form of punishment and he, as such, is
part of that,
Must understand that his loss of personal liberty, legally provided for, inevitably attaches to it the abolition, albeit temporary, of some rights and the curtailment and restriction of others,
Must recognise that such rights, diminished or otherwise, have their legitimacy interfered with by reason of an pursuant to the needs and exigencies of the institutional environment in which the person is detained.

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Breathnach v Ireland

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State had no obligation to put machinery in place to allow prisoner to vote

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Holland v Governor Portlaoise

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Prison: prisoner has ‘lessened rights’, but interferences with rights must be proportionate

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People (DPP) v Kenny

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No violation of right to privacy exists where surveillance made of persons in detention.

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Devoy v Governor Portlaoise Prison

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FACTS: prisoner in Portlaoise prison, placed in isolation in a cell in the segregation unit. Argued that being denied access to education and leisure facilities, visiting entitlements were restricted to non contact and screened visits, and being provided with extremely limited opportunities to avail of telephone facilities.

HELD: though there are significant restrictions on his ability to associate with other prisoners, he can associate and is associating with the other prisoners in his unit.

Moreover, he regularly sees his teacher, his fitness instructor, his chaplain, the Governor, the Chief Officer, the medical officer and has visits from approved family members.

He is not being deprived of human society, he has significant out of cell time, he has entertainment, exercise, facilities for self improvement and his physical conditions of detention are very good. The Court is completely satisfied that there is no evidence to justify his contention that his regime of detention is inhumane and contrary to his human dignity.

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Criminal Procedures

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No such thing as ‘holding for questioning’ in Ireland, either arrested or not

People (DPP) v O’Loughlin: one is either under arrest or not, deprivation of liberty without lawful authority is unconstitutional

People (DPP) v Shaw: lawful arrest requires that person is told of charge upon which being arrested.

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People (DPP) v O’Loughlin

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One is either under arrest or not, deprivation of liberty without lawful authority is unconstitutional

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People (DPP) v Shaw

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Lawful arrest requires that person is told of charge upon which being arrested.

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Re Art 26 & the Illegal Immigrants Bill 1999

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FACTS: S.5(1) allowed preventative detention

HELD: preventative detention unconstitutional in general, but allowable in certain circumstances. Particularly, where detainee has other rights to avail of: here, the procedures in application for asylum / refugee status / leave to remain on humanitarian grounds

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S v HSE

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FACTS: South African national detained in Hospital under Health Act 1947 as believed she had TB and was infectious

HELD: Not unlawful. She had recourse to Art 40.4.2 which provided adequate level of protection.

This case concerned an application under Article 40.4.2 into the legality of the detention of the applicant's daughter, a 33 year old South African national, at the Mercy University Hospital in Cork. The patient was detained pursuant to Section 38 of the Health Act 1947 because it was believed she had tuberculosis, and was a probable source of infection. The patient challenged the constitutionality of Section 38, and also the legality of her detention under Article 40.4.2 Under s 38, once certified by a committing officer as being a probable source of infection, a patient remains in custody until the committing officer deems them no longer to be a probable source of infection. There is a right of appeal under Section 38, directly to the Minister for Health. If the Minister does not respond to such an appeal within 21 days, the Patient must be released. The issue in the case, for the purposes of Article 40.4.2, was whether or not the continuing detention of the patient was a constitutional deprivation of liberty. On this point, the Court concluded that this detention would not be lawful simply because there had been "procedural or technical compliance with the enabling statutory provision." Citing the judgment of Laffoy, J in The Application of Gallagher (No.2) [1996] 3 IRlO, as follows:

"It is well settled that the expression 'in accordance with law' in Article 40, s. 4 does not mean simply in accordance with a statutory provision; adopting the words of Henchy J. in King v. Attorney General [1981] I.R. 233 at p. 257, it means 'without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution ... "'.

Edwards, J therefore concluded that the law in question must be applied in a constitutional manner, and with due regard to the constitutional rights of the patient.

"Accordingly, this Court must now focus on whether the power of detention in the present case is being operated in accordance with principles of constitutional justice. The Court is concerned, in particular, to ascertain whether the detainer is paying sufficient regard to the constitutional and other rights of the patient and whether rights are being adequately respected, defended and vindicated."

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Dokie v DPP

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FACTS: Applicant claimed to be a national of Liberia. She arrived in Ireland in 2008 with her Nigerian daughter and two Nigerian boys unrelated to her. The group travelled on forged passports.

Arrested in Dublin Airport and charged with an offence that she, being a non-national, failed to produce on demand to an Immigration Officer or member of An Garda Síochána, a valid passport or other equivalent document which established her identity and nationality and failed to give a satisfactory explanation of the circumstances which prevented her from doing so contrary to ss. 12(1)(a) and (2) and s. 13 of the Immigration Act 2004.

HELD: S.12 Immigration Act was ambiguous and imprecise and lacked the necessary clarity to create a criminal offence.

The Court granted an injunction restraining the Respondent from taking any further steps in the prosecution arising from the Applicant’s second arrest and a declaration that s. 12 was inconsistent with Articles 38.1 and 40.4.1 of the Constitution of Ireland.

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Section 34 Civil Law (Miscellaneous Provisions) Act 2011

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Section 34 Civil Law (Miscellaneous Provisions) Act 2011: makes provision for replacement of section 12 of the Immigration Act 2004 in response to Dokie, and the finding that section 12 was inconsistent with the Constitution.

New Section 12 differs from the original in two respects:

(i)Introduces a defence that can be used by someone who has been arrested because they can’t produce required documentation. Up to District Court judge to decide what might constitute someone having ‘reasonable cause for not complying with the requirements’

(ii)Purpose of requirement to produce identification must be for ‘the purpose of establishing that the presence in the State of the non-national is not in contravention of S.5 of the 2004 Act’ (which permits non-nationals to remain in the State).

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People (AG) v O’Callaghan

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HELD: High Court listed 13 factors to be considered in bail application

HELD: Sup Ct: disagreed with some factors

(I) Whether or not it is likely that the prisoner may attempt to evade justice.
(2) The seriousness of the charge.
(3) The cogency of the evidence in support of the charge.
(4) The likely length of the sentence to be imposed after conviction.
(5) The likelihood of the commission of other offences while on bail.
( 6) The possible disposal of illegally acquired property.
(7) The possible interference with witnesses or prospective jurors.
(8) The prisoner's failure to answer to bail on a previous occasion.
(9) The fact that the prisoner was caught red-handed.
(10) The objection of the Attorney General or Gardai.
(11) The reliability of the bailsman.
(12) The possibility of a speedy trial.
(13) Bail may be refused to protect the accused.

The Supreme Court disagreed with some of these criteria. In particular, the Court held that it was not permissible to consider criterion 5, relating to the likelihood of commission of future offences:
It would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted.

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Bail

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16th amendment to Constitution resulted in:

-Art 40.4.6: ‘provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person’.

S.2 Bail Act 1997: factors to be taken into account by court

S.3 Bail Act 1997: renewal of application for bail

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Maguire v DPP

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FACTS: could right to speedy trial be considered under a 1997 Act application?

HELD: yes it can be, was not excluded by either the 16th amendment or the Bail Act 1997.

"The possibility of a speedy trial is relevant to the extent that if there is no prospect of a speedy trial a court may very well allow bail where it might not otherwise have allowed it. It cannot be too strongly emphasised, however, that the prospect of a speedy trial is not a ground for refusing bail where it ought otherwise to be granted."

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DPP (Stratford) v Fagan (1994)

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Where it was held by the Supreme Court that Gardai have a common law power to stop and check motor vehicle without any need for invidious suspicion. Denham J dissented on this point, arguing that:

It would be contrary to the fundamental principles of personal rights under the Constitution, the rule of law, and the initiation of a concept with far reaching consequences, to justify the action of the garda on the basis that he was "on duty". The logical sequel would be that all actions performed "on duty" would be legal and permitted. It would establish an authority, based on a broad concept of duty, which is unclear and uncertain. Ultimately this is of benefit neither to the gardai nor citizens.

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O'Callaghan v Ireland (1994)

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s 23 of the Misuse of Drugs Act 1977 was challenged. This section gives the Gardai power to search, without warrant, persons and vehicles they have reasonable cause to suspect are in possession of contain a controlled substance. The Supreme Court held that the test in Ryan v Attorney General (1965) was appropriate, namely, that there is reasonable proportionality between the benefit of the legislation and the interference with personal rights.

And it concluded that:

The Court is satisfied that this is the correct test to apply and that it was correctly applied by the learned judge. It confirms his conclusion that the potential damage to society from the use and distribution and, therefore, from the possession of controlled drugs, is so great and constitutes such a pernicious evil that the legislature was clearly acting within a reasonable and proper discretion in making lawful such extension of the power of arrest as might be found in the power to search contained in
this section.

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State (Comerford ) v Governor of Portlaoise Prison [1981]

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Where the transfer of a remand prisoner to a high security section of the prison was not deemed to render his detention illegal.