Supporting Documents:
130-17 AFL.pdf130-17 Rspndt Notce.pdf

THE SUPREME COURT

DETERMINATION

RESULT: The Court does grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by Mark Finnegan (the Applicant) who was the respondent in the underlying appeal to the Court of Appeal, for leave to appeal under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal (Birmingham J., Edwards J. and Hedigan J), being a judgment delivered by Hedigan J. on the 27th day of July, 2017 and the order made on foot of the said judgment perfected on the 17th day of August, 2017 following the grant of the respondents' appeal from the order of the High Court made herein on the 7th November, 2016 (finding that the arrest of the Applicant on the 10th day of November, 2014 and his subsequent detention between that date and the 10th day of December, 2014 was not in accordance with law and awarding costs to the Applicant).

As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised and the facts underpinning them meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues in respect of which leave to appeal have been granted will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

Information about the decision of the Court of Appeal is set out in the Applicant's application for leave and does not appear to be in dispute from the point of view of the respondents. The application for leave is published on the Courts Service website together with the respondents' notice along with this determination. It would be useful to set out a summary of the background to this matter leading to the decision of the Court of Appeal which it is sought to appeal.

The Applicant was convicted on the 19th November, 2008 of allowing himself to be carried in a vehicle without the consent of the owner. On the 27th May, 2009 he was sentenced to sixteen months imprisonment. He served two months in Wheatfield Prison and was then transferred to Shelton Abbey Open Centre on the 28th July, 2009. On the 31st October, 2009 the Applicant absconded from Shelton Abbey and was declared unlawfully at large as a result. On the 10th November, 2014, the Applicant presented himself by request at Tallaght Garda Station where he was arrested, taken into custody and lodged in Wheatfield Prison in respect of the sentence imposed on him in 2009.

An Garda Síochána had been notified by the authorities in Shelton Abbey that the Applicant was unlawfully at large on or about the 31st October, 2009. No steps were taken by or on behalf of the respondents between the 31st October, 2009 and the 1st June, 2014 to locate and arrest the Applicant for the purpose of returning him to custody. Prior to his imprisonment, the Applicant resided at his family home in Tallaght and on leaving Shelton Abbey, he resumed residence at the said address until 2011 at which time he moved to another address in Tallaght, Dublin 24, where he continued to reside with his partner fulltime. At all times since leaving Shelton Abbey, he collected social welfare payments in Jobstown, Tallaght. In an affidavit sworn on behalf of the respondents, Inspector Peter Burke whilst accepting that it was regrettable that a period of years elapsed between the date when the Applicant absconded from prison and went unlawfully at large and the date when he was returned to prison, he was nonetheless at a loss to explain in detail the circumstances in which that had occurred.

The matter was dealt with in the High Court on the basis of the accepted fact that no steps were taken to secure the arrest of the Applicant until June 2014. There was some dispute as to conversations that took place between the Applicant and members of An Garda Síochána between the end of August 2014 and November 2014 and as to whether the Applicant had denied his identity. The case was determined by the High Court judge, therefore, on the basis of a delay in arresting the Applicant of four years and seven months from the date on which the Applicant absconded and the date in June when he was first contacted by the Gardai. The High Court granted orders declaring that the arrest of the Applicant on the 10th November, 2014 and his subsequent detention in Wheatfield Prison from the 10th November, 2014 to the 10th December, 2014 was not in accordance with the law by reason of the delay. The respondents appealed from that decision and the Court of Appeal allowed the appeal and set aside the judgment of the High Court. It was directed that the Applicant be taken into custody to serve the unexpired balance of the sentence of imprisonment imposed on him on the 19th November, 2008.

3. The order appealed against

The order appealed against is the order of the Court of Appeal of the 27th day of July, 2017, in which the Court of Appeal allowed the appeal of the respondents.

4. The contention of the parties

The Applicant contends that the first matter of general public importance herein is whether the exercise of the power to arrest a person who is unlawfully at large for the purpose of returning him to custody must be exercised in accordance with constitutional principles of fair procedures and whether the State authorities have a duty to act with reasonable expedition in effecting such arrest and return. It is contended that the decision of the Court of Appeal appears to depart from or at least modify the decision of this Court in Dalton v. Governor of Training Unit [2000] IESC 49.

The second matter of general public importance contended for by the Applicant is whether it is correct in law that notwithstanding any delay on the part of the authorities in arresting a person who is unlawfully at large, they may return him summarily to serve out his sentence at any time no matter how many years had elapsed between the act of absconding and the act of returning the prisoner to prison, and no matter how much knowledge of his whereabouts was available to the State authorities.

The third matter of general public importance is whether it is appropriate for the Court of Appeal to prefer the affidavit evidence of one side over the other where the trial court has not been asked to resolve the contested issue of fact and where there had been no oral evidence and/or cross-examination on the issue.

It was further contended on behalf of the Applicant that it was in the interests of justice to allow an appeal to this Court on the basis that the Applicant has, since he absconded from Shelton Abbey, become a father and resided with his partner and two children. It was added that the return of the Applicant to custody at this point in time would cause serious disruption to his family life and that it was thus in the interests of justice that this Court would determine the important issues arising before the authorities are permitted to arrest and detain him.

The respondents contend that no procedure attaches to the act of arrest of an escaped prisoner such that it might attract constitutional principles of fair procedures. It was pointed out that the Gardaí are obliged to arrest an escapee. It was further contended that reliance on the case of Dalton was misplaced. It was stated that the Applicant cannot credibly compare a (unilateral) failure on the part of the State to execute a committal warrant with a decision of the Applicant to abscond during the currency of his sentence.

It was further contended that the second issue raised on behalf of the Applicant, namely whether an escapee can be arrested no matter the length of the delay nor the state of knowledge of the State authorities, was a rhetorical question and that on the evidence in this case it was quite plain that the State authorities were for much of the period in question unaware of the fact of the Applicant's escape due to a failure to note same on the PULSE system. It was further contended that it was plain on the evidence that the Applicant was very much aware of his status during the period in question.

The respondents took issue with the third issue raised on behalf of the Applicant as to whether it was appropriate for the Court of Appeal to prefer the affidavit evidence of the respondent over that of the Applicant where the court of trial was not asked to resolve a contest of fact and where there had been no cross-examination. In this context it was contended that it was wrong to assert that the High Court was not asked to resolve a contest of fact. On the contrary, there was a manifest conflict of fact before the High Court which it did not consider necessary to resolve because of the approach it took to the legal issues in the case. The Court of Appeal was entitled to take an entirely different approach in circumstances where it departed from the approach to the legal issues in the case.

Accordingly it was contended on behalf of the respondents that the Applicant had failed to identify any issue of law in this context, much less one of general importance.

Finally, the respondents took issue with the question as to whether or not "serious disruption to his family life" could give rise to an appeal in the interests of justice. Further it was pointed out that the greater interest in terms of the interests of justice lay in the enforcement of the sentences which have been frustrated by the unilateral act of a prisoner absconding.

5. Discussion

As is clear from a range of determinations made by this Court since the Thirty Third Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it is otherwise in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court.

Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

The Court is satisfied that this appeal raises an issue of general public importance as to the circumstances, if any, in which delay on the part of An Garda Síochána in arresting an absconding prisoner can render his arrest and subsequent detention unlawful. The Court is of the view that the issue said to engage the second limb of the constitutional threshold, the interests of justice, does not meet that threshold.

6. Conclusion

The Court, therefore, grants leave to appeal under Article 34.5.3°.

AND IT IS HEREBY SO ORDERED ACCORDINGLY