The Supreme Court has allowed an appeal by the Member in Charge of Terenure Garda Station in proceedings concerning the detention of Philip Clarke, with the court agreeing that Mr Clarke’s detention was lawful.
In a short judgment delivered on November 1, 2001, Mr Justice Fennelly said he fully agreed with the judgment of Chief Justice Keane both on the legality of the detention and on the conclusion that the appeal should be allowed.
His separate judgment dealt only with a narrower procedural question: whether the point before the court had become moot, meaning that it no longer required determination because of developments affecting the practical dispute between the parties.
Mr Justice Fennelly emphasised that his comments on that question were obiter — observations not necessary to decide the appeal. He noted that the correctness of the Supreme Court’s earlier decision in Re Zwann had not been argued before the court and said it would therefore not have been appropriate to give a dissenting judgment on the issue.
He suggested that part of the Zwann judgment might be open to misunderstanding, particularly because of an ambiguous citation to an earlier decision, State (Browne) v Feran. He distinguished a passage dealing with the power to recommit a person who had been wrongly released from the separate question of the Supreme Court’s appellate jurisdiction.
Mr Justice Fennelly agreed with the Chief Justice that the substantive issue deserved fuller consideration on another occasion. He said that any future examination might also consider the decision in Condon v Minister for Labour.
The practical result of the case was that the appeal succeeded and the Supreme Court accepted that Mr Clarke’s detention was lawful. The judgment does not set out the underlying circumstances of his detention or the reasoning contained in the Chief Justice’s separate judgment.