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Judgment
Title:
P.O.I. -v- Governor of Cloverhill Prison
Neutral Citation:
[2017] IESC 78
Supreme Court Record Number:
130/2016
Court of Appeal Record Number:
491/2016
High Court Record Number:
2016 1163 SS
Date of Delivery:
12/20/2017
Court:
Supreme Court
Composition of Court:
Clarke C.J., McKechnie J., MacMenamin J., Dunne J., O'Malley Iseult J.
Judgment by:
Dunne J.
Status:
Approved
Result:
Appeal dismissed


THE SUPREME COURT

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION


Clarke C.J.
McKechnie J
MacMenamin J.
Dunne J.
O'Malley J.

BETWEEN


P.O.I.
APPLICANT
AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

Judgment of Ms. Justice Dunne delivered the 20th day of December 2017

Introduction/background
The appellant is a Nigerian national and is the subject of a valid deportation order. The appellant was arrested on the 21st October, 2016 for the purpose of his removal from the State and he was then detained in Cloverhill Prison. At the time of his detention, the arresting garda prepared a document headed "Notification of arrest and detention". This document was addressed to the Governor of Cloverhill Prison, the respondent herein. It contained the following statement:

      "In exercise of the powers conferred on me by s. 5 of the Immigration Act 1999 as amended, and by the Immigration Act 1999 (Deportation) Regulations 2005 (S.I. No. 55 of 2005) as amended on (Day) Friday the (Date) 21st October 2016 I arrested P.O.I. dob 01/01/1972 and I direct that the said P.O.I. be detained in Cloverhill Prison, a prescribed place of detention for the purpose of s. 5(3) of the Immigration Act 1999 (No. 22 of 1999) as amended."

      (My emphasis).

The said Notification which sets out the basis for the arrest and detention of the appellant was date-stamped the 21st October, 2016 and stated that the appellant had spent "zero days" in detention. It also stated that the Notification had been executed by lodging the person of the appellant at 17.08 on that date at Cloverhill Prison. It was signed by the arresting Garda, Detective Sergeant Stratford. An inquiry pursuant to Article 40.4.2 of the Constitution was directed on the 24th October, 2016 in relation to the detention of the appellant. The inquiry was heard in conjunction with two other inquiries raising similar issues. The respondent duly certified in writing that the appellant was held in custody "pursuant to detention order dated the 21st October, 2016". The Notification as previously described was annexed.

The High Court proceedings
The appellant in the course of the proceedings before the High Court complained that the Notification was not and did not purport to be a "warrant of detention" within the meaning of the Immigration Act 1999 (Deportation) Regulations 2005 (“the Regulations”) (as amended in 2016) but was a document intended to comply with the notification requirements contained in the Regulations prior to their amendment. The nature of this complaint will become clearer shortly when I set out the relevant Regulations.

By way of response, it was argued on behalf of the respondent that the detention order did show jurisdiction on its face but the respondent was given permission, without prejudice to that contention, to amend the certified grounds of detention. The new/amended certificate of detention certified that the respondent held the appellant in custody "pursuant to warrant of arrest dated the 21st day of October 2016". Annexed to this certificate was a new document entitled "Warrant of arrest and detention". The respondent confirmed to the High Court through counsel that this new "warrant" had been signed by the arresting officer on 25th October, 2016. However, the document itself is dated and stamped 21 October, 2016, and purports to have been signed by the arresting garda on that date. It is addressed to the respondent and also purports to have been executed by "lodging the person of the [appellant] on Friday 21 October 2016 at 17.08pm in Cloverhill Prison".

Complaint was then made by the appellant that, in circumstances where the document was dated and purportedly executed on a date when it did not exist, it was misleading to a fundamental extent and defective on its face. In any event, it was contended that the new document could not retrospectively validate the period of time that the appellant had been detained on foot of the original, defective notification and an order for the release of the appellant was therefore sought.

The High Court, in a judgment entitled in the name of one of the other parties making a similar application, Sharma v. Member in charge of Store Street Garda Station [2016] IEHC 611, declined to reach a conclusion on whether the error in the original certificate, namely the description of the document relied on as a notification of arrest and detention as opposed to using the phrase "warrant" either in the heading or the body of the document, was fatal, given that the learned trial judge (Humphreys J.) was of the view that it was appropriate to permit the respondent to amend the certificate and the underlying document. He stated (at paras. 53 and 54) as follows:

      "An amended certificate is generally by way of addition to the material before the court, rather than complete substitution, in the sense that the original certificate remains as part of the record of the court, and all documents can be read together to understand the sequence of events. Both are part of the material before the court, although the amended certificate is in a sense the operative document.

      In the present case, I conclude that I have jurisdiction to permit the amendment, and that it is appropriate to do so, because the primary consideration in terms of the rule of law is that the documentation underlying the detention of the applicants (and other similarly situated persons) should correctly reflect the statutory scheme, which the amended certificates do to a greater extent than the original (although they do not do so perfectly, an issue to which I now turn), and there is no pressing reason of public policy not to permit the respondent to do so."

Accordingly the learned trial judge declined to release the applicants before him, including the appellant herein.

The applicants then brought an appeal to the Court of Appeal and those appeals were heard together. Judgment was delivered by the Court of Appeal (Birmingham J., Mahon J. and Edwards J.) on the 15th November, 2016 by Birmingham J. ([2016] IECA 330).

Birmingham J. noted that, in essence, the appellants in each case complained that the documents the detainers sought to rely on were not in fact and did not purport to be warrants of detention. He went on to note that the respondent made the point that there was no basis for the criticism of the original detention orders, but sought, on a without prejudice basis, to amend the certified grounds of detention. It was further noted by Birmingham J. that the judge's finding that it was necessary that a document relied on should actually describe itself as a warrant was the subject of a cross-appeal by the respondents. Having considered the judgment of the High Court and the relevant statutes and regulations, he concluded that:

      ". . . the document originally relied on does everything that a warrant could be expected to do. It might well have been better had the document been headed 'Warrant for detention', but the fact that the document might have been and perhaps ought to have been drafted differently, does not provide a basis for condemning the document. Neither the Prison Governor or Member in Charge to whom it is addressed nor the person in respect of whom it was issued could have been left in any doubt whatever about what the impact of the document was. There is absolutely no question of anyone being mislead. In those circumstances I am of the view that the documentation originally brought into existence provided a valid basis for justifying the detention and on this aspect I would allow the cross appeal by the Prison Governor and Member in Charge."
Birmingham J. went on to conclude that in the event that he was wrong in relation to his view on that issue he would have taken the view that there was jurisdiction to permit the amendments and that it was appropriate to do so. He indicated that had it been necessary to do so he would have allowed the amendments and would not have felt constrained from doing so by reason of the difficulties identified with the "warrant of arrest and detention documents". Accordingly, the Court of Appeal dismissed the appeals of the applicants including the appellant herein and allowed the respondent herein to succeed in his cross-appeal.

The issues before this Court
An application for leave to appeal to this Court was then submitted on behalf of the appellant in this case. The application for leave and notice of appeal was filed with the Office of the Supreme Court on the 15th November, 2016. In circumstances where there was a valid deportation order and there was no stay on the order of the High Court or, perhaps more appropriately, no injunction restraining the deportation of the appellant pending the determination of his application for leave to appeal, this Court requested the respondent to furnish its notice in reply to the application for leave as a matter of urgency given that it had been indicated on behalf of the appellant that it was the intention of the State to remove the appellant from the State on the 24th November, 2016. In the circumstances an oral hearing took place on the 23rd November, 2016. On that date, this Court granted leave to the appellant to appeal to this Court from the Court of Appeal and further heard an application on behalf of the appellant to have his deportation deferred pending the hearing of his appeal. Having heard that application, the Court refused his application to defer the execution of the deportation order but granted leave on the following grounds:

      "(1) Must the document required to justify the detention of an individual be headed as a 'Warrant of detention' in order to be valid?

      (2) What is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an inquiry under Article 40.4.2 of the Constitution and can a new warrant be provided in place of the original document relied on to justify the detention?

      (3) Can such new document be backdated to the date of the original detention of the individual or should it be regarded as being in addition to the original documentation provided by way of certificate rather than a substitution thereof?

      (4) What effect, if any, does backdating have on the validity of the documentation relied on and the steps taken to detain the applicant?

      (5) Finally, what is the jurisdiction of any court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged?"


Statutory provisions and regulations made thereunder
In order to place the arguments in this case in context, it is necessary to set out certain provisions of the relevant legislation which resulted in the arrest and detention of the appellant. It should be borne in mind that the relevant legislation and regulations made thereunder were amended by statute and by new regulations which came into force on the 10th March, 2016. Before it was amended, s. 5(1) of the Immigration Act 1999 provided as follows:
      "Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force -

        (a) has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii),

        (b) intends to leave the State and enter another state without lawful authority,

        (c) has destroyed his or her identity documents or is in possession of forged identity documents, or

        (d) intends to avoid removal from the State,

        he or she may arrest him or her without warrant and detain him or her in a prescribed place."

Section 5 of the Immigration Act 1999 as amended by s. 78 of the International Protection Act 2015 now provides as follows:
      "5(1) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that a person against whom a deportation order is in force -

        (a) has failed to leave the State within the time specified in the order,

        (b) has failed to comply with any other provision of the order or with the requirement in a notice under section 3(3)(b)(ii),

        (c) intends to leave the State and enter another state without lawful authority,

        (d) has destroyed his or her identity documents or is in possession of forged identity documents, or

        (e) intends to avoid removal from the State,

        the officer or member may arrest the person without warrant and a person so arrested may be taken to a place referred to in subsection (3) and detained in the place in accordance with that subsection:

        . . .

        (3) A person who is arrested and detained under subsection (1) or (2) may be detained -

        (a) in a prescribed place, or

        . . ."

It is also important to have regard to the provisions of regulation 7 of the Immigration Act 1999 (Deportation) Regulations 2005 as originally termed and regulations 3 and 4 of the Immigration Act 1999 (Deportation) (Amendment) Regulations 2016 which introduced a new regulation 7. Regulation 7 as originally formulated provided as follows:
      "Where an immigration officer or member of the Garda Síochána arrests a person pursuant to section 5(1) of the Act and where he or she proposes to detain the person in a prescribed place, he or she shall, in writing, inform the Member in Charge, in the case of a Garda Síochána station, or the Governor, in any other case, of the arrest and direct that the person be detained until further notice."
The amended regulation 7 as introduced by regulations 3 and 4 of the Immigration Act 1999 (Deportation) (Amendment) Regulations 2016 provides as follows:
      "3. Regulation 5 of the Regulations of 2005 is amended by the substitution of 'section 5(3)' for 'section 5(1)'.

      4. The Regulations of 2005 are amended by the substitution of the following for Regulation 7:


        '7. A person who is arrested under subsection (1) or (2) of section 5 of the Act may, for the purposes for his or her detention, in a prescribed place, under that section -

        (a) be taken by an immigration officer or a member of the Garda Síochána to a prescribed place, and

        (b) be detained, until further notice, in the prescribed place under warrant of the immigration officer or member of the Garda Síochána who arrested him or her'."

        (My emphasis)

It will be immediately apparent that it no longer appears that there is a personal obligation on the arresting immigration officer or member of the Garda Síochána to bring the detained person to a prescribed place. What is required is that there must be a document directing the detention of the arrested person in the prescribed place provided "under warrant" of the immigration officer or member of the Garda Síochána who arrested him or her. There is no provision in either the Regulations of 2005 or indeed the amending Regulations of 2016 setting out the terms in which the document should be worded. As counsel on behalf of the appellant has pointed out, it appears that the amendments to the provisions of s. 5 and the amended Regulations "intend the detaining document to be a free-standing document or 'warrant' that could be 'executed' by any officer".

The learned trial judge in the course of his judgment described the effect of the amendments to the Regulations as follows:

      "Thus the amended regulations provide for a warrant of the arresting officer, rather than, as previously under the original 2005 regulations, a notification and direction. Within the system, this has been informally called a "detention order" although Edwards J. in Darchiashvili referred to it as a "so called 'detention order'", illustrating that this phrase is not to be found in statutory language."
Humphreys J. went on to observe that the phrase "detention order" was unhelpful and confusing. He observed that the instrument used to detain an individual should “actually describe itself as a warrant, either in the heading or the body of the document." That brings me to the first question upon which leave was given to appeal to this Court.

Must the document required to justify the detention of an individual be headed as a warrant of detention to be valid?
The starting point for a discussion of this issue must be Article 40.4.2 of the Constitution which provides:

      "Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."
In this case the appellant was in the custody of the Governor of Cloverhill Prison, the respondent herein, and thus it fell to the respondent to certify in writing the grounds of the appellant's detention. In the course of his judgment, the learned trial judge noted that:
      ". . . the certificates originally filed under Article 40.4 set forth documents which purport to be in each case a 'notification' of arrest and detention. Mr. Moore has applied for liberty to file amended certificates which refer to a 'warrant' of arrest and detention, without prejudice to his submission that the original certificates are not erroneous.

      But they are erroneous. To validly justify detention under the legislation, a warrant of the arresting officer must be produced, not a document purporting to be a notification. This issue cannot be dismissed as a mere heading."

Ultimately, as previously explained, the learned trial judge allowed amended certificates to be filed and proceeded to consider whether the respondents before him should be permitted to amend the certificates. Thus, because of the approach taken by the learned trial judge to the effect that it was open to amend the certificates, he concluded "it is not in fact necessary for me to make a final finding as to whether the error in the original certificate was of such a nature as to justify release under Article 40.4". Accordingly, the release of the appellant was refused.

The appellant then appealed that decision to the Court of Appeal and judgment was delivered in that Court on the 15th November, 2016. Birmingham J. quoted the observation of the learned trial judge as follows:

      "Overall, a review of other statutory instances of forms of warrant supports the conclusion that it is generally regarded as material insofar as personal liberty is concerned that the instrument actually describe itself as a warrant, either in the heading or the body of the document. A warrant is a distinct category from a notification (even allowing for the point that the content of the notification also includes a direction to detain).”
There was a cross-appeal before the Court of Appeal by the respondent and the Member in Charge in relation to the finding that it was necessary that a document relied on to detain an individual should actually describe itself as a warrant.

The Court of Appeal came to a different conclusion to the learned trial judge in relation to the validity of the original documentation bearing the heading "Notification of arrest and detention". The terms of s. 5 of the Immigration Act 1999 as amended were considered and it was observed that the Act made no reference to a need for a warrant authorising detention. As was pointed out:

      ". . . s. 5 provides that the officer or member (of An Garda Síochána) may arrest the person without warrant, and a person so arrested may be taken to a place referred to in subs. (3) and detained in the place in accordance with that subsection."
Birmingham J. then examined the provisions of the Regulations and in particular regulation 7(b) of the Regulations as amended in 2016. As he noted, the regulation provides that:
      ". . . an individual may be detained in a prescribed place under warrant of the immigration officer or member of the Garda Síochána who arrested him or her (emphasis added)."
The Court of Appeal concluded that the regulation meant and provided that a person may be detained under the authority of the relevant immigration officer or member of An Garda Síochána who made the arrest. Birmingham J. commented that in his view it was not necessary that an actual warrant either so headed and described or a warrant in any particular form was required to provide a basis for detention. In support of his conclusion, he cited a passage from Stroud's Judicial Dictionary (7th Ed.) and the definition of warrant set out therein:
      "'Warrant' has two frequent meanings. (a) a document (ordinarily issued by a magistrate) where the apprehension of an accused person, in order to compel him to appear and answer the charge brought against him or to search for property with respect to which an offence against the Larceny or Theft Acts is suspected to have been committed, (b) a document authorising something to be done, or for the delivery of goods, or for the payment of money.”
Birmingham J. was of the view that what was in issue, and what regulation 7(b) provided for, was a document authorising something to be done, which in this case was the detention of an individual in a prescribed place. He concluded that the document "Notification of arrest and detention" did everything that a warrant could be expected to do:
      "It might well have been better had the document been headed 'Warrant for detention', but the fact that the document might have been and perhaps ought to have been drafted differently, does not provide a basis for condemning the document. Neither the Prison Governor or Member in Charge to whom it is addressed nor the person in respect of whom it was issued could have been left in any doubt whatever about what the impact of the document was. There is absolutely no question of anyone being mislead."
In the circumstances he concluded that the document originally brought into existence provided a valid basis for justifying the detention of the appellant and therefore he allowed the cross-appeal of the respondent.

In the course of the written submissions, reference was made to the decision of this Court in the case of Ejerenwa v. The Governor of Cloverhill Prison [2011] IESC 41 which considered the contents of a document authorising the detention of a non-national pursuant to s. 5(2) of the Immigration Act 2003. In that case, it had been argued that the document required to detain the appellant was defective on its face because it did not show that the immigration officer/garda síochána had suspected with reasonable cause that the appellant had been unlawfully in the State for a continuous period for less than three months. As Denham C.J. put it:

      "In essence, it was submitted that the warrant of detention must show on its face the basis of its jurisdiction and that the warrant did not do so."
(Incidentally, the document in that case was also described as a "detention order").

Denham C.J. at page 8 of the judgment commented:

      "The principle of law at issue in this case is well established. In The State (Hughes) v. Lennon and Ors. [1935] I.R. 128 at p.142, Sullivan P. spoke of having no doubt of the principle. He stated:-

        'I did not think there could be any doubt upon that matter. 'And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged: Peacock v. Bell (1 Saund. R.74d.)' 'In the case of special authorities given by statute to Justices or others acting out of the ordinary course of the Common Law, the instruments by which they act, whether warrants to arrest, commitments, or orders, or convictions, or inquisitions, ought, according to the course of decisions, to show their authority on the face of them by direct averment or reasonable intendment. Not so the process of Superior Courts acting by the authority of the Common Law,' per Parke B: Gosset v. Howard (10 Q.B. 411, at pp 452, 453). This principle was recognised and reaffirmed by Palles C.B. in the course of his judgment in R. (Boylan) v. Londonderry JJ., ([1912] 2 I.R. 374) in which he refers (at p. 381) to 'the more general rule that not only an order to imprison, but any order made by any authority, no matter how high, not known to the Common Law or although known to it, not acting in pursuance of it, must upon the face of it show the facts which give the jurisdiction to make it'."
Denham C.J. went on to say at page 10 of the judgment:
      "A document, such as in issue here, should contain clear information on its face as to the basis of its jurisdiction. This information is required so that it be available to, for example, (a) the person in custody, such as the appellant; (b) the Governor of the Prison, or any other, who is holding a person in custody; and (c) the Court which is requested to inquire into the custody pursuant to Article 40 of the Constitution."
It seems to me that the document relied on in this case headed "Notification of arrest and detention" meets those requirements. It contains clear information on its face as to the basis of its jurisdiction, and there could be no doubt on the part of either the person in custody or the Governor of the prison or other person who may be entitled to hold the person in custody, and equally a court inquiring into the custody of an individual pursuant to Article 40 of the Constitution has the basis of the document. The document in this case headed "Notification of arrest and detention" was addressed to the Governor of Cloverhill Prison. It set out the fact that the appellant had been arrested under the powers conferred by s. 5 of the Immigration Act 1999 as amended. It set out the date of the arrest, the name of the person arrested, their date of birth and set out the direction that pending the making of arrangements for the removal of the individual named from the State that he be detained in a prescribed place of detention as provided for. The document went on to set out the basis for the arrest and detention by the member of the Garda Síochána in question, namely that he had reasonable cause to suspect that the person concerned had failed to comply with any other provision of the deportation order or with a requirement in a notice under s. 3(3)(b)(ii) and that he intended to avoid removal from the State.

The document also indicated that there was a limit on time for the removal of the individual concerned. It set out details as to how long the individual had been in detention prior to that date and was signed by the arresting member of the gardaí and bore a legend indicating that it had been executed by lodging the individual concerned in Cloverhill Prison. Thus, as can be seen, the document on its face contained all of the information necessary to make it plain to the appellant and to the prison Governor, and, indeed, to any court considering an inquiry into the detention of the individual concerned, the basis upon which he was so detained.

In the course of submissions, counsel on behalf of the appellant referred to a number of circumstances in which various statutory forms of warrant used the word "warrant" in the heading. For example, reference was made to the District Court Rules 1997 in which warrants such as search warrants and committal warrants are headed as such (see Form No. 34.12 in respect of a search warrant and Form 17.1 in respect of committal warrants). On that basis, it was contended that an instrument, particularly when issued by a court, should describe itself as a warrant either in the heading or the body of the document. Reference was made to the decision of the High Court in the case of Darchiashvili v. Governor of Mountjoy Women's Prison [2011] IEHC 264 where no document in writing had been given to the Governor. Edwards J. made the following comments at pages 16 to 17 of the judgment:

      "The need for a person in charge of a prescribed place to know about an earlier arrest or arrests is afforded express recognition in regulation 7 of the Regulations of 2005 . . . The Court is satisfied that this is not merely a procedural requirement. Rather it is properly to be characterised, in this Court's view, as a provision necessary for the purpose of giving full effect to the power of arrest and detention contained in s. 5 of the Act of 1999. It is not merely an incidental, supplementary and consequential provision, rather the regulation creates a necessary precondition to the lawful delegation of the power of detention, and/or the transfer of custody, of an intended deportee who has been arrested and initially detained by an authorised person in reliance on s. 5 of the Act of 1999, to the person in charge of the prescribed place at which it is proposed to further detain, or more correctly, continue the detention of the detained person.

      . . .

      As it is conceded by counsel for the respondent that, contrary to an express requirement contained in regulation 7 of the Regulations of 2005, the respondent was not informed in writing of the arrest of the applicant by the person who carried out that arrest and the initial detention of the applicant in purported pursuance of s. 5(1) of the Act of 1999, the Court considers that the purported delegation of the power of detention, and/or the transfer of custody, of the applicant from the arresting officer to the respondent was not lawful. In the circumstances the applicant was entitled to be released."

That decision related, of course, to the old regulation 7. However, it emphasised the importance of the fact that the person in charge of the prescribed place had to be informed by the arresting officer in writing of the arrest, and the arresting officer was then required to direct that the person be detained until further notice. It was emphasised that, absent the compliance with that requirement, the purported delegation of the power of detention was rendered unlawful. It is now contended on behalf of the appellant that the original document relied on in this case was drafted for the purpose of complying with the requirement under the old regulation 7. It is contended that in failing to "issue" a warrant, the garda involved failed to comply with the current statutory rules governing detention. Accordingly, the appellant contends that there is no jurisdiction to detain the appellant except "under warrant of the immigration officer or member of the Garda Síochána who arrested" the appellant. It is contended that no such warrant exists. The case made on behalf of the appellant is that the notification of arrest and detention was in compliance with the former provisions of regulation 7 but that it was no longer in compliance with the current legislation following the amendment of the Regulations in 2016 as "A warrant is the only basis upon which the detainer could be conferred with lawful authority to detain the appellant".

At the heart of the case made by the appellant herein is the fact that the Regulations of 2016 contain in regulation 7 the phrase "under warrant" and that such phrase was not used in the previous iteration of regulation 7. As Birmingham J. said in the course of his judgment in the Court of Appeal, what regulation 7(b) speaks of is "a document authorising something to be done, the something to be done being in this case the detention of the individual in a prescribed place". He went on to add

      ". . . the document expressly directs that pending the making of arrangements for the removal of the individual from this State, that he be detained in Cloverhill Prison/Store Street garda station, a prescribed place of detention. The document also makes clear that the member of the gardaí is exercising powers conferred by s. 5 of the Immigration Act 1999 as amended and by the Immigration Act 1999 (Deportation) Regulations 2005, as amended and the basis for the arrest and detention is set out. Had the document been headed 'Warrant' or had it been so referred to in the body of the document it would have directed or commanded that the individual in question be detained.

      In those circumstances it seems to me that the document originally relied on does everything that a warrant could be expected to do."

I agree with those observations. I think there is some merit in the observation that it might well have been better had the document been headed "Warrant for detention" but the fact that the document might have been and perhaps ought to have been drafted differently does not provide a basis for condemning the document. It would definitely have been better had the form of the document to be used been prescribed in the Regulations thereby removing any room for doubt as to the form of the document required to be used to detain an individual pending deportation.

Accordingly, it seems to me that the phrase "under warrant" does not mean that the document relied on must be called a warrant. Here, the document was clear in setting out the basis of the arrest and directing the detention of the appellant for the purpose of his removal from the State. The important point to note is that no one could have been left in any doubt whatsoever as to the nature of the document, the purpose of the document and the effect of the document. It is important to consider what the document does rather than what it says. The use of the word “warrant” in a document does not validate or confer on the document an authority it otherwise lacks. The use of language in formal documents is important but it is equally important not to be beguiled into considering form over substance. If a document requires a specific form of words to be used to give it effect, then the document should conform to that form of words, so far as possible. It is interesting to observe that, as a rule, warrants issued by a court come in a prescribed form as provided for in Rules of Court. Thus, a Warrant for Arrest issued by the District Court is set out in the District Court Rules addressed to an officer of the Garda Síochána and is headed “Warrant of Arrest” and is worded as follows: “This is to command you to whom this warrant is addressed to arrest the said ….” It is clear and unambiguous in its terms. The document in this case is not the subject of a prescribed form but it is equally clear and unambiguous in its terms. That is what is necessary. Section 5 of the Immigration Act 1999 as amended and the Immigration Act 1999 (Deportation) Regulations 2005 as amended gave the member of the gardaí the authority to arrest the appellant and the authority was given to the member of the gardaí concerned to direct the detention of the appellant. Accordingly, I would answer the first question raised in the grounds of appeal by saying that it is not necessary that the document required to justify the detention of an individual be headed as a "Warrant of detention" in order to be valid.

What is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an inquiry under Article 40.4.2 of the Constitution and can a new warrant be provided in place of the original document relied on to justify the detention?
Strictly speaking, it is not necessary to consider this issue in the light of the answer to the first issue. However, in view of the fact that both the High Court judgment and the judgment of the Court of Appeal expressed the view that amendments were possible, I propose to consider this issue briefly. The learned trial judge dealt with this issue at length in the course of his judgment, (paras. 31 - 54), in which he set out a detailed, historical review of case law on the court's power of amendment. Nevertheless, none of the authorities cited turned on the question as to whether the word "warrant" was an essential part of the document concerned.

It is clear that a judge dealing with an Article 40.4.2 application may seek further information in the course of an enquiry into the detention of an individual. For example, in Miller v. Governor of the Midlands Prison [2014] IEHC 176, Baker J. did this in the context of a case involving a "short form warrant" as she described it. On the return to the enquiry, the prison Governor exhibited the short form warrant which was relied on to justify the detention in that case. Baker J. was of the view that the short form warrant on its face did not justify the detention of the prisoner in that case. However, in the course of the enquiry, further documents were produced to the court. She concluded that she was entitled to take those additional documents together with the short form warrant into consideration in deciding whether the detention of the prisoner in that case was lawful. She said at para. 29 of her judgment:

      "In the circumstances, and having regard to clear authority on the subject that the court may seek and find clarification and assistance in the records of the court to assist in interpreting the grounds for detention, my view is that the short form warrant when taken together with and joined to the Circuit Court orders form a sufficient basis for the detention of the applicant. I say this expressly because it is possible to join these documents without having to engage with any extrinsic evidence and because the short form warrant contains, on its face, sufficient and unique signifiers which enable the link to be made."
As it happened, the documents which were adduced before her had not been provided to the prison Governor until almost a full day after the substantive hearing had commenced before her. In those circumstances she expressed the view that, given that:
      "The documentation sought to be joined by the respondent as a matter of fact was not and did not come into the possession of the Governor until late in the day following the hearing. At the time the Court concluded its inquiry into the legal basis for the detention of the applicant, the Governor did not have adequate information to know with sufficient precision and insufficient detail the offence on which the applicant was detained."
In the circumstances, she directed the release of the applicant in that case. It is clear from the authorities that further information may be obtained in the course of an Article 40 inquiry to supplement the certificate of the prison Governor. It may also be the case that in circumstances where there is an underlying conviction order it may be possible to amend the certificate of the prison Governor by the inclusion not just of a warrant of committal but to include the underlying conviction order. In this context, Hogan J. noted in Joyce v. Governor of the Dóchas Centre [2013] 2 I.L.R.M. 366, in which the applicant was released because the warrant by reference to which she was detained was bad on its face and did not disclose the offence for which she was convicted, at paragraph 36:
      "The position might well be different if there was in existence a separate conviction order which contained those details of the offence of which the applicant was convicted and which was offered as a justification for the detention."

      (Emphasis added).

Thus, it seems to me that it is open in the course of an Article 40 enquiry for the respondent to seek to amend the certificate relied upon to justify the detention of an individual. It may also be possible for a warrant to be amended by the court that issued it. Thus, for example, in M.C. v. Director of Oberstown [2014] IEHC 222, McDermott J. had to consider a warrant which was alleged to be defective in that it specified an incorrect statutory provision justifying detention and failed to mention that the provision in question had been substituted by a subsequent Act. McDermott J. stated as follows at para. 18 of his judgment, rejecting the argument that the warrant in that case was defective:
      "It is also submitted that there is a more fundamental defect in that s. 88(1)(c) was relied upon in the heading of the Warrant rather than the correct section 88(l)(a). Section 88(1)(c) refers to a situation when the court decides to remand a child in custody 'in respect of whom the court has postponed a decision'. This is clearly not such a case. The citation of the subsection is inappropriate - but is it fatal to the warrant? I do not consider that it is. A want of form, ambiguity or error may be corrected or resolved by reference to other documentation or to what actually transpired at a hearing (see The State (Brien) v. Kelly [1970] I.R. 69 and In re Tynan [1969] I.R 273). For that reason the slip rule exists and an error such as that which occurred in this case might be easily corrected by application under the District Court Rules in that regard."
Where there is an underlying valid order of a court committing an individual to prison, it may be possible to amend the warrant. However, as has been accepted by the respondent in the written submissions, where the warrant cannot be corrected, because the ambiguity on the face of the warrant reflects a more deep-seated confusion in the proceedings such as where the true state of affairs is not reliably ascertainable from any source, this cannot be done. To put it another way, in circumstances where a warrant is defective in that it does not reflect the court order actually made, it may be possible to go back to court to amend the warrant to reflect the court order. That is assuming that there is a valid court order in the first place. If the underlying basis of the detention is invalid then the individual detained is entitled to be released. A trivial error or slip in the completion of the warrant will not be fatal to its validity. There could be no reason not to amend in such circumstances.

In this case, given that the document relied on to justify the detention of the appellant was the notification of arrest and detention and that there was no underlying basis for the detention other than that document, such as a court order providing for the detention of an individual, then it was only by reference to that document that the validity of the appellant's detention could be considered. The detention of the appellant was administrative in nature, as distinct from a detention following a court order. There is no other basis for the detention of the appellant. If the document was in fact bad on its face or otherwise invalid, it simply would not be possible to amend the document for the purpose of rendering the detention of the appellant lawful. Where the alleged invalidity arose from a trivial error or mistake which could not have caused any confusion as to the basis for the detention of the individual concerned, for example, a mistake as to the date of birth of the individual or a misspelling of his or her name, to give but two examples, there is no reason why it would be necessary to formally amend the document concerned. A trivial mistake or minor error which causes no unfairness or confusion might be overlooked rather than necessitating a formal amendment by the court hearing the Article 40 enquiry. However, as I have already reached the conclusion that the notice of arrest and detention in this case was a valid document, nothing further needs to be said on this issue.

Given these conclusions on the first two questions raised in this appeal, it is not necessary to consider the other questions raised as to the backdating of an amended document or the effect of backdating such document.

What is the jurisdiction of any court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged?
The final question raised in this case concerns the jurisdiction to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged. The reason behind this issue can best be explained by examining the determination made in this case granting leave to appeal to this Court from the decision of the Court of Appeal. Having been unsuccessful in his application before the High Court, the appellant then appealed to the Court of Appeal which came to the same conclusion as the High Court, albeit on somewhat different grounds. Before the matter had been heard in the Court of Appeal an order had been granted on the 8th November, 2016, pending the hearing of the appeal, that the respondent be restrained from deporting the applicant until the 14th November, 2016, the date fixed for the hearing. Following the hearing in the Court of Appeal, judgment was delivered by that Court on the 15th November, 2016. An application was then made to the Court of Appeal on the 22nd November, 2016 for a stay on the deportation order pending the determination of an application for leave to appeal to this Court, the application for leave and notice of appeal having been filed on the 16th November, 2016. The application for a stay pending the determination of the application for leave to appeal to this Court was refused on the basis that the Court of Appeal could not grant a stay or an injunction, more accurately, to restrain the execution of a valid deportation order. Following the filing of the application for leave and notice of appeal herein this Court gave directions that the respondent's notice should be filed on the 25th November, 2016. As set out in the determination:

      "The Respondent indicated on the 23rd November, 2016, that the State was not disposed to give any undertaking not to deport the applicant pending the consideration of the Application for leave and further that it was proposed to deport him on the 24th November, 2016. In those circumstances, this Court, pursuant to paragraph 18 of Practice Direction SC 16, abridged the time for the filing of the Application for Leave and the delivery of the Respondent’s Notice. Furthermore, this Court considered it appropriate to have an oral hearing on the application for leave to enable the applicant to make an application for an injunction to restrain the execution of the deportation order immediately thereafter in the event that the determination of this Court was to grant leave. A hearing took place on the evening of the 23rd November, 2016 and at that hearing, leave to appeal was granted to the applicant and it was indicated that the reasons would be furnished in this written determination. The application for the injunctive relief was then made on behalf of the applicant and opposed by the respondent. The Court having considered that application refused to grant the injunctive relief sought for reasons given in an ex tempore judgment delivered by the presiding Judge, Mr. Justice O’Donnell."
The jurisprudence in relation to appeals has been changed since the Thirty Third Amendment to the Constitution came into force. As has been pointed out in many determinations of this Court since the Thirty Third Amendment came into force, 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. It is clear from the Thirty Third Amendment to the Constitution that before a decision sought to be appealed can be brought to this Court it must be established that the decision sought to be appealed involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. Given that this is so, it will be apparent that this may create difficulty in some cases where the question of a stay or injunction pending the determination of an application for leave to appeal arises. In such circumstances, it is to be anticipated that it would be appropriate for such an application to be made in the first place to the Court of Appeal (or the High Court in the case of appeals under Article 34.5.4°) for a short stay or injunction as the case may be, pending a decision of this Court on an application for leave. As was pointed out in the determination in this case, it may be appropriate in circumstances of urgency for the Court of Appeal to grant only a very short stay or injunction, perhaps on strict terms as to the lodging of documentation within the time permitted, to permit and enable the expedited procedure available in this Court to be exercised. If the matter was dealt with in that way by the Court of Appeal (or in appropriate cases, the High Court, in the context of a "leapfrog" appeal) such a procedure would avoid the risk of injustice and delay but would also allow an appropriate opportunity to enable the disappointed party to invoke the jurisdiction of this Court and to permit an appropriate timeframe to be available to this Court to consider whether or not the constitutional threshold has been met in the particular case. Perhaps understandably, the Court of Appeal in this case when it considered the application on the 22nd November, 2016 took the view that it was not appropriate to grant any injunction or stay in this case because the injunction sought related to the deportation of the appellant pursuant to a valid order which had not been the subject of a challenge. As was pointed out in the determination:
      "In such a case, the Respondent should consider refraining from taking steps to enforce an order while the jurisdiction of this Court, to consider if leave to appeal should be granted, has been invoked. If the Respondent nevertheless insists upon executing an order, or taking some other step, and thus necessitating an expedited hearing, the Respondent should be in a position to explain and justify such a decision."
It is somewhat unsatisfactory from the point of view of the parties and, indeed, the Court to have to embark on the consideration of an application for leave in circumstances where the time limits provided for applying for leave and for furnishing a response to such application have to be truncated to such an extent. Indeed, the absence of a stay or injunction even for a relatively short period of time, which in truth is all that would be required, necessarily foreshortens the period of time available for the Court to determine the application for leave to appeal. It is often said that justice delayed is justice denied but equally it might be said that justice delivered on issues such as those which arose in this case in undue haste may also be unsatisfactory. In order to meet the justice of this case, the Court was of the view that it was appropriate to embark on an oral hearing in order to consider the issues raised by way of general public importance in this case. All in all, the procedure required to be followed in this case was somewhat unsatisfactory and put great pressure on the parties to prepare complex documentation in a very limited time frame and necessitated the Court having to embark on an oral hearing at short notice. This could have been avoided by a short stay of ten days or so to enable the parties to deal with the matter appropriately. I appreciate the fact that this was a case in which the appellant had not challenged the underlying deportation order. I further appreciate that the subject matter of the proceedings was an Article 40 inquiry. Nevertheless, it does seem to me that it would be beneficial in cases of this kind to consider the possibility of a short stay or injunction on the deportation order pending the consideration of the application for leave to appeal. In this particular case, as mentioned previously, it is noteworthy that, prior to the hearing in the Court of Appeal, that Court considered it appropriate to note that, while no undertaking was given to the Court of Appeal that the appellant would not be deported pending the hearing of the appeal, the respondent did not oppose or consent to an order restraining deportation of the appellant pending appeal and accordingly the Court of Appeal ordered that the respondent be restrained from deporting the applicant until Monday, the 14th November, 2016, the date fixed for the hearing of the appeal before that Court. Given the circumstances, it seems to me that it would have been similarly open to the Court of Appeal, notwithstanding the existence of a valid deportation order, to have further restrained the respondent for a limited period of time as I have indicated. Such an order could, as I have already indicated, contain directions as to the taking of steps to further any application for leave to appeal and could provide in an appropriate case that, in default of complying with the order, any stay or injunction would lapse. It would not be appropriate for this Court to prescribe the circumstances in which the Court of Appeal can exercise its jurisdiction in relation to the grant of a stay or injunction, as may be appropriate, pending the conclusion of an appeal before that Court (or the High Court in the case of a "leapfrog" application), but in considering its jurisdiction, it would be helpful if the Court had regard to the difficulties involved from a time point of view in relation to dealing with such issues in such a truncated fashion. I am not suggesting that any such stay or injunction would be granted pending the hearing of any appeal in the event that such application for leave was successful, rather it is suggested solely to allow for such an application to be made quickly and efficiently but without undue haste to ensure that the right of access to court to appeal a decision is not unduly truncated or impeded. Such an approach would not be inconsistent with the approach of this Court in the case of Okunade v. Minister for Justice [2012] 3 I.R. 152.

Conclusion

      1. It is not necessary for the document directing the detention of an individual pending deportation to have the word “Warrant" in its heading in order to be valid.

      2. A certificate provided in an Article 40.4 enquiry may be amended, as can a warrant where there is an underlying valid basis such as a court order which would justify the detention of an individual. Where there is no other underlying valid basis for the detention other than the document relied on, as in this case, amendments should be confined to trivial errors or mistakes which could not cause any confusion as to the basis for the detention of the individual concerned. The warrant or other document justifying a detention cannot be corrected or amended if the ambiguity on its face reflects a more deep-seated confusion in the proceedings, such as where the true state of affairs is not reliably ascertainable from any source.

      3. Consideration should be given to the possibility of a short stay or injunction to restrain deportation to enable the making of an application for leave to appeal to this court, where appropriate, on strict terms to ensure that any such application takes place within an appropriate time frame to facilitate all concerned.

In all the circumstances, I would dismiss the appeal.










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