The High Court dismissed three applications for release under Article 40 of the Constitution after allowing amended certificates to be filed in cases concerning detention under the Immigration Act 1999.
The applicants were Dibyaswor Sharma, Prince Ighodaro and Emirion Gjonaj. Their cases concerned detention at a Garda station or prison following arrest under section 5 of the Act. The judgment does not specify which applicant was held at which facility.
Justice Richard Humphreys found that the original certificates were erroneous because they presented the relevant documents as notifications, when a warrant from the arresting officer was required to justify detention. The court considered whether those errors warranted release but did not make a final finding on that question, because it addressed the respondents’ applications to amend the certificates.
The judge held that the court had power to permit amendments during an Article 40 inquiry, provided the application was made before the court had determined that the existing justification for detention was inadequate. He allowed the amended certificates in all three cases, saying they better reflected the statutory scheme.
The revised warrants also contained errors: they were headed “warrant of arrest and detention”, were backdated to the original detention date and were completed as executed. The judge said only detention needed to be warranted, and that the amended warrants had not been the documents originally executed. He found these errors minor in the circumstances and not sufficient to warrant release under the principle of proportionality. He said future documents should be described as warrants of detention.
The court dismissed all three release applications. It had previously granted Sharma bail during the proceedings but refused bail to Ighodaro and Gjonaj after hearing evidence that they were likely not to attend if released and that conditions could not adequately reduce that risk. The final order required Sharma to surrender to custody forthwith under the warrant attached to his amended certificate, with liberty to apply for a further order if he failed to do so. The court also recommended that each applicant receive payment of costs, including solicitors and two counsel, under the custody issue scheme.