The High Court has refused to direct an inquiry into the detention of David Walsh in Cork Prison, dismissing an application brought on his behalf under Article 40.4.2° of the Constitution.
In an ex tempore ruling on 21 June 2019, Mr Justice Garrett Simons said the papers and arguments before him disclosed no stateable ground for saying the detention was unlawful. The court refused to direct an inquiry and dismissed the application. It did not order Walsh’s release.
The application was brought by Damien Gibney. The judge noted that Gibney had no written consent from Walsh to bring it, and that the affidavits were deficient. A similar application had been refused the previous day by Mr Justice Noonan, who had indicated it could be renewed on proper affidavit evidence. Justice Simons said he would not decide the case solely on that procedural basis, given the importance of habeas corpus.
The judge said Walsh was detained under a Circuit Court order imposing 14 days for contempt in the face of the court. That order had been considered in earlier proceedings: the High Court initially granted habeas corpus in 2016, but the Court of Appeal and then the Supreme Court ruled against Walsh. The Supreme Court held the Circuit Court order valid in a judgment delivered on 25 February 2019.
According to the ruling, Walsh had served four days before the earlier High Court application and was released on bail at that stage, leaving 10 days to serve. Justice Simons said Walsh appeared to have voluntarily returned to Cork Prison that week and had served about three or four of the remaining days. The ruling said there was no evidence before the court about a Court of Appeal procedure that may have allowed Walsh to purge his contempt.
Gibney’s stated basis for the new application was an alleged change in the law, relying on the Supreme Court’s decision in Tracey v McCarthy, delivered on the same day as its judgment in Walsh’s earlier case. Justice Simons rejected the suggestion that the two decisions were inconsistent, noting they had been heard together and described as companion cases. He also referred to the Supreme Court’s decision in A. v Governor of Arbour Hill Prison in explaining why a change in law would not, on the basis argued, make an otherwise lawful detention unlawful.