The High Court has refused James Fogarty’s application for immediate release from Portlaoise Prison, finding that his committal warrant was valid and that his other complaints did not establish grounds for release under Article 40 of the Constitution.
Fogarty is serving a four-and-a-half-year sentence after a jury convicted him in January 2020 of assault causing harm. The charge arose from an incident on 8 August 2015, when a neighbour was struck on the head with a stick and needed 12 stitches. Fogarty challenged the account and argued that his detention was unlawful because of alleged failures in the investigation, legal representation, disclosure and trial process.
Justice Mary Rose Gearty, delivering judgment on 27 March 2020, said Article 40 is an urgent remedy for detention involving an absence of jurisdiction, a fundamental denial of justice or a fundamental flaw. It is not generally a way to review complaints that should be raised on appeal.
The court rejected Fogarty’s argument that the committal warrant was invalid because it lacked the Circuit Court seal. The judge said the applicable Circuit Court rules did not require a warrant to bear a seal, and affidavit evidence showed that the person who signed it had authority. Errors in Fogarty’s name and date of birth had not been pursued at the hearing; the judgment said they caused no confusion about the basis of detention.
Gearty J also considered claims about the trial. Fogarty had discharged three solicitors and received an adjournment on 14 January 2020 to obtain another lawyer. When he did not have one by the trial date a week later, he represented himself; the trial judge refused his request for his son, Martin Fogarty, to act for him. In the Article 40 hearing, Gearty J permitted Martin to present the case, citing medical evidence of his father’s acquired brain injury and the risk of injustice if he had to present it alone.
The judgment records that the trial judge made an error by treating Fogarty’s application to dismiss the case as something to be made at the close of the prosecution case. But Gearty J concluded that this did not amount to a fundamental breach requiring immediate release: the application, despite its label, principally sought disclosure and argument on 155 items.
The court also rejected claims that evidence had been ordered destroyed during the trial. It said the trial judge’s order concerned handing seized phones to gardaí so recordings made in court could be deleted. The court made no finding on allegations about conditions during pre-trial detention, saying they could not make the current sentence unlawful at this stage.
Gearty J said the remaining complaints were more appropriately pursued by an appeal. The application was refused.