The Court of Appeal allowed Karl Mullen’s appeal against the dismissal of his constitutional challenge to his detention and ordered his release forthwith, finding that a warrant relied on to justify his continued imprisonment did not support the start of the relevant consecutive sentence.
In an ex tempore judgment delivered on 16 December 2014, Mr Justice Kelly said the appeal concerned a High Court decision of 31 July 2014. That court had completed an inquiry under Article 40 of the Constitution into the lawfulness of Mullen’s detention in the Midlands Prison and dismissed his application.
The prison governor’s return had referred to six warrants, but only four were relevant to whether detention was lawful at the High Court hearing. Two had expired. The appeal turned on the meaning of Warrant B, dated 11 March 2010, which imposed a five-year term to run consecutively to the sentence then being served. The final two and a half years were suspended for three years.
The High Court had treated the sentences under Warrants E, D and C as being served when Warrant B was issued. Warrants E and D, both dated 17 December 2009, imposed three-year and four-year terms respectively, each commencing on 6 February 2009. Warrant C, also dated 17 December 2009, imposed a five-year term to begin only after the lawful determination of the sentence under Warrant E; its final two years were suspended for three years.
Justice Kelly said the wording of Warrant C meant its term had not begun on 11 March 2010. At that time, Mullen was serving the terms under Warrants E and D, which were concurrent. The court said those terms had expired by the time of the High Court hearing, leaving Warrant B as the sole asserted basis for continued detention.
The Court of Appeal concluded that Warrant C could not be used to establish that Warrant B’s consecutive term had begun. It held that the High Court was wrong to count the terms under Warrants E, D and C cumulatively to justify continued detention. The appeal was allowed, and the court ordered Mullen’s immediate release. Justices Irvine and Hogan agreed with the judgment.