The High Court has found that Mark Kennedy was in lawful custody at Portlaoise Prison, rejecting his application for release under Article 40.4 of the Constitution. Mr Justice Eagar said the warrants supporting his detention showed jurisdiction on their face. He also held that an extension of time to appeal his District Court convictions did not make an otherwise lawful detention unlawful.
The inquiry had been directed on 15 May 2017. The prison’s assistant governor certified that Mr Kennedy was held under a Circuit Court warrant dated 16 April 2016 and two committal warrants dated 12 April 2016.
Mr Kennedy’s solicitor argued that the Circuit Court had activated a seven-year suspended sentence under provisions of the Criminal Justice Act 2006 that had been declared unconstitutional in Moore v Ireland. Counsel said the resulting warrant was invalid and that Mr Kennedy’s later District Court sentences could not independently justify continued detention. Mr Kennedy had been given an extension of time to appeal his convictions for the offences that triggered the sentence activation; the appeal was then pending.
The respondent argued that the challenge was an attempt to reopen proceedings that had become final. The original appeal deadlines had passed, and the extension was granted after the Moore judgment. The respondent also submitted that the warrants and attached charge sheets set out the relevant sentences, activation date and triggering offences.
Justice Eagar held that finality had been reached when the time to appeal the District Court sentence expired on 26 April 2016. He said the later extension of time to appeal did not render the detention unlawful. The court considered Article 40 release was not the appropriate mechanism to determine the issue and said it might be suitable for judicial review proceedings instead.
The judge was satisfied that the warrant recited three sentences suspended for seven years, their activation within that period, and the triggering offences shown in the certified warrants. He distinguished the case concerning a Garda-issued warrant relied on by the applicant. The court concluded that Mr Kennedy was in lawful custody. The judgment did not decide the merits of the pending appeal against the triggering-offence convictions.