The High Court has refused an application by Daniel Hamill for release from Cloverhill Prison, ruling that his absence from a procedural court mention did not make his detention unlawful.
Hamill applied under Article 40.4.2 of the Constitution, arguing that his detention had become unlawful after he was not brought into Court 8 at the Four Courts on 20 October 2006, when he was further remanded. His solicitor and counsel were present and the case was put back to 23 November, according to the judgment of Mr Justice Michael Peart, delivered on 22 November 2006.
The judgment says Hamill had been in custody for about seven weeks by the hearing date and was awaiting trial. Bail had been refused in the District Court, High Court and, on appeal, by the Supreme Court. The October listing was for procedural purposes only; no trial was due to take place.
Hamill’s lawyers submitted that his absence breached his rights to fair procedures and access to legal representation. He said he had been disadvantaged because a co-accused, who was on bail and physically present in court, had been able to instruct lawyers to make an application concerning CCTV and similar evidence. Hamill’s counsel argued that justice could not be seen to be done in the accused’s absence.
Justice Peart noted that the grounding affidavit did not say Hamill had asked to see his legal team and been refused, or that his lawyers had sought access to him and been refused. It identified no specific prejudice resulting from his absence. The judge also said Hamill had had access to his solicitor during the preceding seven weeks and that his lawyers could have raised a similar application in court if they considered it appropriate.
The judge said fair procedures include a right to be present when justice is administered, particularly at trial, but it was not clear that an accused has an absolute right to attend every mention, including one for a remand or hearing date. A court-service letter telling Hamill to attend did not itself establish such a right, the judgment said.
The court also criticised the seven-week delay before Hamill sought release under the urgent habeas corpus procedure, with no exceptional explanation offered. Justice Peart said the delay would not itself prevent relief if detention were unlawful, but concluded that the alleged procedural flaw did not undermine its legality. He was satisfied Hamill was detained in accordance with law and refused the relief sought.