The High Court has awarded Glen Dempsey the costs of an Article 40 habeas corpus application after Garda questioning ended and he was released on nominal bail, making the detention application moot before its legality was decided.
Mr Justice Herbert ruled on costs on 1 June 2011. He ordered that Dempsey receive the costs of the application for a conditional order, including the costs of the costs hearing, with the amount to be taxed if the parties could not agree.
Dempsey had been arrested on 6 December 2010 under section 30(1) of the Offences Against the State Act 1939, on suspicion of possessing information relating to a scheduled offence. The parties agreed that the offence under investigation was the unlawful discharge of a firearm at 44 Brookfield on 17 November 2010.
His solicitor questioned whether the detention power was constitutional and asked whether Dempsey was suspected of committing the offence. Gardaí did not answer that question. The application sought an inquiry into his detention. After the court directed that he be produced and that the grounds for his detention be certified, Gardaí said their questioning was complete and did not object to his release on nominal bail.
The application was adjourned by consent and later struck out, with costs reserved. The court did not determine whether Dempsey’s detention was lawful, whether he had standing to challenge the statutory power, or whether the relevant part of section 30(1) was constitutional. Mr Justice Herbert said the events had made the application moot before those questions required a decision.
For the costs hearing, Dempsey argued that the application had been necessary to secure his release and that he could challenge the power under which he was detained. The respondent and notice parties argued that the application was misconceived because he was a person of interest in the investigation, and that he lacked standing to raise the rights of hypothetical innocent people. They also said the application should not have been brought before his lawyers established whether the constitutional point applied to his circumstances.
The judge was not satisfied that Dempsey would inevitably, or even probably, have been found to lack standing if the application had proceeded. He found that, after the solicitor notified Gardaí of the intended application, Dempsey was neither released immediately nor assured that release was imminent. In those circumstances, his lawyers had no option if they wished to secure his release but to proceed.
The judgment sets out factors for assessing whether an Article 40 application was reasonable, including whether it was appropriate, whether preliminary steps had been taken and whether there was sufficient doubt about the lawfulness of detention or the constitutionality of the legislation. The judge found the application met those criteria. The costs order addressed the reasonableness of bringing it; it was not a ruling on the legality of the detention.