The High Court has refused to order the release of A.H. from custody after finding that a fresh Special Criminal Court warrant lawfully brought an earlier period of unlawful detention at Castlerea Prison to an end.
A.H. was awaiting judgment from the Special Criminal Court following a trial that ended on 6 August 2021. He had been remanded until 22 October, when judgment was originally expected. The judgment date was later moved to 8 November, but no new committal warrant was made before the earlier one expired.
The State accepted that A.H.'s detention became unlawful after 22 October. He sought release under Article 40.4.2 of the Constitution on 24 October.
Later that day, however, the Special Criminal Court made a fresh warrant authorising his detention until 8 November. A.H. argued that this could not cure the problem unless he was first physically released, then served with the warrant and re-arrested.
Ms Justice Niamh Hyland rejected that argument. She held that unlawful detention can, in principle, be ended either by release or by a fresh valid committal warrant. Whether the later warrant can be relied upon depends on factors including the nature of the earlier illegality, fairness and the need to vindicate constitutional rights.
Here, the failure to obtain a fresh warrant was described as inadvertent. There was no allegation of bad faith or a deliberate breach of rights. The judge also noted that if A.H. had been released, he could immediately have been re-arrested under the new warrant, leaving him in materially the same position.
The court further held that his detention after the fresh order was made was lawful because it was exclusively for the purpose of executing the warrant and transferring him to Portlaoise Prison. Failure to serve the warrant personally did not invalidate his detention.
The Article 40 application was therefore refused.