The High Court declared the detention of T. M. in Mountjoy Prison unlawful after a deportation flight turned back to Dublin because it could not obtain permission to cross Algerian airspace.
The judgment, delivered ex tempore by Mr Justice Charleton on 26 July 2011, arose from an application under Article 40.4 of the Constitution challenging the legality of T. M.’s detention. The court considered whether he could lawfully be returned to prison to serve the remainder of his sentence after the deportation attempt failed.
T. M. had been sentenced by the Circuit Criminal Court in Dublin in May 2011 for serious assaults. The judgment said that, with ordinary remission, his sentence would otherwise have ended on 9 January 2012. A temporary release order made on 13 July authorised his release until that date for removal from the State, subject to conditions including that he be removed.
Gardaí took him from Mountjoy to a charter flight carrying people being deported to African countries. After the aircraft turned back over the Mediterranean and landed in Dublin, T. M. was returned to prison. The court accepted Inspector Joe Dignam’s evidence about the procedure and events. It found that T. M. had not been arrested for breaching the release order, or on an immigration ground, and had not been arrested at all.
The court held that a breach of a temporary release condition under the Criminal Justice Act 1960 required wilful or purposive conduct. T. M. had gone where he was taken and returned with the aircraft; the failed removal was not his fault. The court also concluded that the aircraft had left Irish airspace and that the legislation relied on by the State did not extend Garda civil detention powers beyond it. On return, T. M. was not arrested following an immigration decision refusing him permission to land.
The judge said the temporary release order remained in force and no lawful basis had been established for holding T. M. in prison. He therefore declared his current detention unlawful. The ruling did not decide what the Minister or Gardaí might lawfully do next, including any later immigration action or possible revocation of the order. The judge made no ruling on whether revocation would be available in these circumstances.