The High Court has rejected an argument that a prisoner’s challenge to his detention over alleged lack of notice of an appeal hearing should be dealt with through judicial review rather than an inquiry under Article 40 of the Constitution.
Mr Justice Hogan’s ruling on 31 July 2012 resolved a preliminary jurisdictional issue in Gary Bailey’s application. It did not determine whether Mr Bailey had received adequate notice or whether his detention was lawful. The judge said the inquiry into the legality of the detention would continue.
Mr Bailey was serving a four-month sentence for road traffic offences, including driving without insurance and without a licence. After appealing his District Court conviction, he was released pending the appeal. His solicitor swore that neither he nor Mr Bailey received notification of the appeal date. The appeal was heard in Mr Bailey’s absence on 13 June 2012; the Circuit Court struck it out, affirmed the conviction and ordered him to serve the sentence.
The committal warrant was addressed to a former address in Clondalkin, while the judgment said Mr Bailey was then living with his mother in Ballyfermot. He was arrested at Ronanstown Garda Station on 15 July after attending there at the request of a relative who had been told a warrant existed.
The respondent, the Governor of Mountjoy Prison, argued that complaints about notice and the warrant belonged in judicial review. The judge considered Supreme Court decisions including *Sheehan v Reilly*, *McSorley v Governor of Mountjoy Prison* and *McDonagh v Governor of Cloverhill Prison*. He treated *McSorley* as an exceptional case involving a specific challenge to a judge’s conduct, where judicial review could allow that judge to be heard.
Justice Hogan concluded that questions about notice in criminal proceedings could be raised under Article 40.4.2. He said adequate notice is central to fair procedures and that detention following a conviction reached without adequate prior notice may be unlawful. The respondent’s jurisdictional objection was rejected, and the court moved on to the remaining inquiry into the legality of Mr Bailey’s detention.