The Supreme Court agreed with an order releasing Nazih Kadri from Wheatfield Prison, ruling that a fresh incident based on the same grounds for breach of a deportation order could not restart the statutory eight-week detention period.
In a judgment delivered on 10 May 2012, Mr Justice Clarke said he agreed with Mr Justice Fennelly’s reasons for ordering Mr Kadri’s release. The case was an inquiry under Article 40.4 of the Constitution, and the appeal was numbered 159/2012.
Mr Justice Clarke addressed the trial judge’s reliance on earlier High Court decisions. He said a High Court judge should not lightly depart from a consistent decision of another judge of the same court without strong reasons. In his view, the trial judge had been correct to follow that line of authority. The Supreme Court, however, was required to consider the issue on its merits, while taking account of the earlier cases and a previous Supreme Court decision.
On the detention limit, Mr Justice Clarke agreed that a new incident involving the same grounds of breach could not create another eight-week period, or any further detention where the total exceeded eight weeks. He said that interpretation followed the wording of section 5(6), and that the aggregate limit was intended to prevent multiple detention periods being used to evade the cap.
The Governor’s counsel had relied on section 5(1) of the Interpretation Act 2005, which permits a construction reflecting legislative intention in certain cases of ambiguity, absurdity or obvious mistake. Mr Justice Clarke said the provision authorises interpretation, not rewriting. He considered the statutory wording clear and said a literal reading was neither absurd nor contrary to obvious legislative intent.
He acknowledged that the legislature might have wished to provide for cases where a person’s resistance made deportation impossible within the eight-week period. But the safeguards and length of any extension were matters for legislation. The Court could not insert detailed measures through a strained interpretation of the Act.
Mr Justice Clarke concluded that he agreed with the release order already made and with Mr Justice MacMenamin’s judgment, including its view that the situation required legislative intervention.