The Supreme Court agreed that exceptional circumstances justified not enforcing an otherwise valid warrant for Mark Finnegan’s imprisonment. In a concurring judgment, Chief Justice Frank Clarke said the required threshold had already been crossed when Mr Finnegan was arrested and launched proceedings.
The judgment, delivered on 15 May 2019, was one of several in the appeal. Chief Justice Clarke said he agreed with the other members of the Court on the result and with the overall test set out in Mr Justice O’Donnell’s judgment. He also said the analysis of relevant factors in Mr Justice McKechnie’s judgment persuaded him that the case fell within a rare and unusual exception.
Chief Justice Clarke said the constitutional requirement that imprisonment be “in due course of law” includes obligations of constitutional fairness beyond compliance with formal legal rules. In principle, those requirements may, in very limited circumstances, outweigh the usual obligation to enforce a valid committal warrant.
He emphasised that a person imprisoned under a valid warrant has significant constitutional protections where the conviction and sentence followed a fair process. Any circumstances capable of outweighing the requirement to serve the sentence would therefore have to be “very weighty indeed”, he said. He added that shortcomings in how the State handled matters, or prejudice to the person facing imprisonment, would not alone meet that threshold.
The Chief Justice differed in one respect from Mr Justice O’Donnell’s reasoning. He said he would give no significant weight to the additional period of about five years during which Mr Finnegan remained on bail while the proceedings continued. Delay caused by bringing proceedings could not, by itself, significantly change whether the exceptional threshold had been met, he said, and treating it as decisive might encourage litigation to generate further delay.
Chief Justice Clarke agreed with the order proposed by Mr Justice McKechnie. The concurring judgment does not set out the terms of that order; it records agreement with the proposed order and the Court’s conclusion that the case met the narrow exception to the general rule requiring a person subject to a valid imprisonment warrant to serve the term imposed.