The Court of Appeal has dismissed James Fogarty’s appeal against a High Court decision refusing to order his release from Portlaoise Prison under Article 40.4.2° of the Constitution.
In a judgment delivered on 21 December 2021, President Birmingham said the appeal lacked merit. The court considered the case on the papers after Fogarty did not make submissions at a resumed hearing on 9 November 2021. He had sought to have his son represent him. The court had said he could use a solicitor and counsel with legal aid or represent himself.
The High Court had identified the committal warrant as the only issue suitable for an Article 40 inquiry. The warrant contained errors concerning the form of Fogarty’s forename and his date of birth, and Fogarty also objected that it lacked a court seal. The Court of Appeal said a seal was not required: the warrant should be authenticated by the signature of an authorised person. Evidence before the court was that the relevant rule of court had been signed by a nominated signatory whose appointment remained in force.
The judgment said that even if the warrant had a defect in its execution, that would not require Fogarty’s immediate release. The court said any defect could be corrected, noting that he had been tried, convicted and sentenced.
Fogarty had raised a range of complaints about the investigation, arrest, legal representation, trial and an application under section 4(e) of the Criminal Procedure Act 1967. Birmingham said such matters, including disclosure and the refusal to dismiss a case, were generally appropriate for an appeal against conviction rather than an Article 40 inquiry. The court also said the judgment before it showed that Fogarty had been offered opportunities to obtain legal advice and had chosen to represent himself or seek representation by a family member.
The judgment noted that Fogarty had said he appealed at an early stage, but no appeal had emerged. The authorities had indicated they would not oppose an application to extend time for an appeal against conviction or sentence. Birmingham said the sentence of four and a half years, with the prospect of one year suspended, appeared toward the higher end for assaults under section 3 of the Non-Fatal Offences Against the Person Act 1997, based on the limited information available.
The Court of Appeal said that if Fogarty successfully sought an extension of time, any resulting appeal against conviction or sentence would receive priority in the court’s management list, with a view to an early hearing. The judgment did not grant an extension or determine any appeal against conviction or sentence.