SUPREME COURT

Between /

2. Both the judgments of O’Donnell and McKechnie JJ contain a very detailed analysis of the case law. I have nothing to add on that topic save to indicate that I agree that there are no cases directly on point and, insofar as a general principle can be determined, it is to the effect that there may be circumstances when it is not constitutionally proper to enforce an otherwise valid warrant or order for the committal of a person to prison.

3. Like O’Donnell J., I consider that the source of that principle lies in the fact that it is well established that the requirement that persons only be imprisoned “in due course of law” goes beyond compliance with formal legal provisions so as to incorporate overriding obligations of constitutional fairness. Against that background it is, in principle, possible that such constitutional requirements may, in very limited circumstances, override what would otherwise be the obvious obligation to enforce an order committing a person to prison after a trial in due course of law and, if invoked, any appellate process.

4. I would also agree with the other judgments and, in particular, that of O’Donnell J. to the effect that a very significant weight indeed needs to be attached to the fact that a person who is the subject of a valid warrant has been convicted and sentenced to imprisonment after a constitutionally fair process. It follows that the circumstances which could warrant determining that other considerations outweigh the imperative that the person concerned serves the period of imprisonment duly imposed would need to be very weighty indeed. It follows in turn that the circumstances where the Constitution would require that a warrant not be enforced would be correspondingly very limited indeed.

5. I agree that the factors which broadly need to be considered are as identified in the other judgments delivered in this case but would add that they require to be assessed against the backdrop of the requirement that there be very weighty considerations indeed before a court could countenance determining that an otherwise valid sentence should not be served. The fact that matters may not have progressed in an ideal fashion from the perspective of the State and/or the fact that there may be some prejudice to the person whose incarceration is sought would, in my view, fall well short of meeting the necessary threshold.

6. However, I would not be inclined to place any significant weight on the factor identified by O’Donnell J. towards the end of his judgment being the fact that a further period of the order of five years has elapsed during the currency of these proceedings during which period Mr. Finnegan has been released on bail. If it were not appropriate to determine, at the time when these proceedings were commenced, that the wholly exceptional circumstances which would warrant the non enforcement of an otherwise valid warrant were present, then I do not consider that the fact that it has taken some time for these proceedings to come to a final resolution could weigh significantly in the balance. In making that point I appreciate that, even if one took a different view as to how things stood at the time when Mr Finnegan’s proceedings were commenced, his case was at least sufficiently strong to persuade the High Court to find in his favour. Nonetheless I do not consider that the mounting of proceedings which had the effect of delaying a final determination for a significant period of time could, in itself, significantly alter the assessment of whether the threshold has been met. Indeed, to place significant weight on that factor might encourage the bringing of proceedings in the hope that any extra delay thereby engendered might itself tip the balance.

7. For myself I would be content to adopt the overall test identified in the judgment of O’Donnell J. but to indicate that the analysis of the various factors properly taken into account in that test which is set out in the judgment of McKechnie J. persuades me that, at the time when Mr. Finnegan was arrested and these proceedings were launched, the threshold had already been passed so that this case comes into the rare and unusual exception to the general requirement that persons who are the subject of valid warrants for their imprisonment should serve a term of imprisonment in accordance with the terms of the warrant concerned. In those circumstances I would agree with the order proposed by McKechnie J.