THE STATE AT THE PROSECUTION OF BERNARD FLYNN
IN THE CASE OF JOSEPH FLANNERY
V
THE GOVERNOR OF MOUNTJOY PRISON

AND

THE STATE AT THE PROSECUTION OF MARY McCORMICK

THE GOVERNOR OF MOUNTJOY PRISON

Judgment of Mr. Justice Barron delivered the 6th day of May 1987.

The first Prosecutor was found guilty on 10th April 1984 in the District Court of resisting a Garda Officer in the execution of his duty and sentenced to four months' imprisonment
He appealed, but withdrew his appeal, and on 31st May 1984 the sentence was affirmed.

A warrant for committal issued on the 15th of June 1984. The Garda in charge of the case made two efforts to execute this warrant, the first after a further five or six weeks, the latter four weeks later.  On both occasions, he sought the Prosecutor at his home, but was told by the mother of the Prosecutor that he was living in the Ringsend area.

On the 29th of July 1986 the Prosecutor was arrested on another charge.  While in custody he was arrested on foot of the warrant issued on 15th June 1984, and which was re-issued on the day of his arrest.  The other charge having been disposed of without a custodial sentence, the Prosecutor contends that his continued custody is unlawful in that the delay in the execution of the warrant rendered its eventual execution arbitrary and capricious and constituted a failure to vindicate his constitutional right to reasonable
expedition in its execution.  The Respondent opposes the application and relies upon the warrant.

The present issue arises by reason of the system employed by the Garda authorities for the execution of such warrants. When issued, such warrants are sent to the Superintendent of the district in which the Defendant resides. A Guard then executes the warrant wherever the Defendant may be found.  There is no time scale involve and it is obvious that the particular Guard concerned acts on the warrant when he has time.  If the Defendant cannot be found and there is no reason to suppose that he will be found in any other Garda district, the warrant is placed in the warrants cupboard where it remains.  If further information becomes available, then such information will be acted upon.  If there is reason to suppose that the Defendant might be residing in a different Garda district, P        the warrant will be sent to the Superintendent of that district where it will be treated in the same way.

Not only does the execution of the warrant appear not to be  a matter of any urgency, but when it becomes apparent that a Defendant is not to be found at the address which he has given, there is no evidence of any effort being made to trace his whereabouts by any means at all.  In the present case, the Defendant says that he resided at the address which he had given to the Guards and nowhere else.  He says that when his nephew was killed in an accident in the Summer of 1985 the Guards came to his home in the early hours of the morning and that it was he who went with them to identify the body.  He also says that he collected his Social Welfare payments every week at Thomas Street Labour Exchange. He also gave evidence to suggest that the Guards were fully aware that he was living at his home.  I have no doubt that if there  had been any real effort made to find the Defendant he would have been found and the warrant executed.  It is obvious that his
mother was not believed because the warrant was not re-directed to the Superintendent in charge of the Ringsend district.

The issue is whether or not such a finding makes the	 execution of the warrant invalid.  The Prosecutor relies upon the decision of D'Arcy J. in Cuddy -v- Mangan made on the 1st of July 1985.  In that case the Defendant was charged with a driving offence.  The Summons was not served until two years after the offence.  The Defendant made the case that he had originally anticipated a prosecution, but as time had passed he had assumed
that there would be none and-had forgotten the details of what had occurred.  The District Justice nevertheless heard the case and convicted.  The conviction was quashed on the ground that the delay had prejudiced the Defendant in the presentation of his defence.

Delay in that case was not a ground for setting aside a conviction per se, but because the result of the delay prejudiced «| the defence of the accused.  Delay in effecting an arrest to enforce a sentence of imprisonment operates in a different way. The arrest is itself the exercise of a power which must be carried out in accordance with fair procedures. Support for this proposition is to be found in Cunningham .v. The Governor of Mountjoy Prison, an unreported decision of Egan J. delivered on the 5th December 1985.  In that case the Prosecutor was alleged to be in breach of the terms of his temporary release pursuant to the provisions of Section 2 of the Criminal Justice Act 1960.

The Respondent requested the Garda Authorities to arrest the Prosecutor and to return him to custody.  A period of seven months elapsed before this request was complied with.  No explanation was given for such delay.   It was held that what had occurred was unfair and that the arrest was unlawful. To consider whether or not the procedures in the present
instance were fair, it is necessary to consider the statutory basis upon which such warrants are issued.

The issue of the warrant is covered by Rule 68(1) of the District Court Rules 1948 which so far as material is as follows: 
"68  In cases of summary jurisdiction:
(1) When any defendant has been sentenced to imprisonment the Justice shall issue the warrant of committal (Form 18A or Form 18B) forthwith,	where the imprisonment is to take place immediately."

In my view, it is implicit that the warrant should be issued there and then when the sentence is imposed, and, where the sentence is imposed on appeal, as soon as is reasonably possible. Likewise, once it has issued, it must be executed as soon as is reasonably possible. If not, then a Defendant sentenced to a term of imprisonment may find himself or herself serving such sentence at a future date merely through a failure of
administrative processes.  The term of a sentence is not its only feature; its commencement date is equally important.

If it is likely to be delayed, then there can be no certainty as to the sentence imposed; and, if it is delayed, then the sentence served may well not be the sentence imposed. Of course, none of this is applicable to a case where the failure to execute the warrant is the result of evasion on the part of the Defendant himself.

The rules themselves recognize that warrants cannot be executed at any time after their issue.  Rule 78 provides as follows:

"Whenever any warrant, other than a warrant for the arrest of a person charged with an indictable offence, is addressed, transmitted or endorsed for execution, to any person, and he is unable to find the person against whom the warrant has been issued, or to discover where that person is, or where he has goods, he shall return such warrant to the Justice for the district in which the same was issued within such time as is fixed by the warrant (or within a reasonable time, not exceeding six months, where no time is so fixed), with a certificate (Form 19) endorsed on        
it stating the reason why it has not been executed, and the said Justice may re-issue the said warrant, after examining any person on oath, if he thinks fit to do 
so, concerning the non-execution of the warrant or may issue any other warrant for the same purpose from time to time as shall seem expedient."

This rule, save for its initial proviso, is virtually a repeat of the words of Section 33 of the Petty Sessions (Ireland) Act, 1851.  The Certificate to be endorsed on the warrant is in the same form both in the Act and in the 1948 District Court Rules.  There is however a material difference in the forms of  warrant.  That in the Schedule to the 1851 Act ends:

"The warrant to be returned in days if not executed."

This formula does not appear in the relevant forms in the Schedule of Forms to the 1948 Rules.  Section 35 of the 1851 Act also recognises that the execution of the warrant cannot	be discretionary since it makes it a criminal offence where there is either wilful neglect in returning an unexecuted warrant at the correct time or wilful default in its execution.

In my view, the proper construction of these statutory provisions is that the execution of a warrant is subject to the control of the Court.  In a case where a time is limited for its execution, and it is not executed within that time, it is a matter for the District Justice to determine whether to re-issue the warrant or to issue a fresh warrant or to do neither of these two things.  Unless he does so, the sentence, where the warrant relates to a term of imprisonment, cannot be enforced.  Similarly, when no time is indicated, the enforceability of the sentence should cease after a reasonable time.  Unless the District Justice on an application to him decides for good reason to re-issue the warrant or to issue
a fresh warrant.

In O'Connor's The Irish Justice of the Peace, Second Edition, the author says at page 74:

"A warrant remains in force until it is fully executed provided the Justice who signed it so long live and provided, it is submitted, also that the Justice continued to hold office."

It seems therefore, and particularly if his submission is correct, that the validity of a warrant is dependent upon the continuing consent of the Justice to its execution.  Where the time limited or a reasonable time has expired, having regard to his powers under Section 33, it is proper to regard his consent as having been revoked.  Accordingly, unless he exercises these powers, any arrest on foot of the original warrant after the expiry either of the time limited for execution or of a reasonable time, when there is none, is unlawful, because at such time the warrant itself is spent.

In the present case these powers have been exercised. The warrant was re-issued on the day that it was executed. Inquiry into the validity of the arrest is therefore dependent upon an inquiry as to the validity of the re-issue of the warrant. So long as this remains unchallenged, as it does, it cannot be said that the arrest was unreasonably delayed.

This Prosecutrix was found guilty on the 30th of September 1985 of shoplifting and sentenced to six months' imprisonment. She appealed against this sentence.  Her appeal came on for hearing on the 25th of February 1986 and, because she did not appear, it was struck out and her sentence affirmed. On the 16th March, the Prosecutrix was arrested on other charges and these were dealt with in the Bridewell Dublin on 26th March, 1986.  At that Court hearing, she was legally represented and asked for outstanding matters to be taken into account.  This was done and she received a sentence of six months imprisonment. There was no reference to the earlier conviction nor to the appeal. The Prosecutrix at that date was unaware that it had been struck out. The Prosecutrix  however understood that the District Justice in imposing sentence understood that all matters then outstanding against the Prosecutrix were being covered. 

The warrant for committal following upon the affirming of the first sentence did not issue until the 12th April 1986 when it was sent from the Bridewell Garda Station to Fitzgibbon Street Garda Station in the mistaken belief that the Prosecutrix’s home was in that district.  The person issuing the warrant appears to have been unaware that the Prosecutrix was at that date in prison. The warrant was re-addressed to Store Street Garda Station on the 25th July 1986 because the address of the Prosecutrix was within that Garda district.

The Prosecutrix started her second sentence on the day it was imposed, 26th March 1986, and was released on 8th August 1986 having completed that sentence. While in prison, she discovered that her appeal against her first sentence had been struck out.  Whether on learning of this or not, she wrote by letter dated the 25th April 1986 to the Station Sergeant at Store Street as follows:

"I Mary McCormick am writing out to enquire if there are any outstanding warrants to be brought up against me.  As far as I am aware there are no outstanding warrants.  This is my third time writing to you. I am at present serving six months' sentence.  I am due to be released on 10th August 1986.  I have been attending M.A. meetings since I was committed to prison. I want a fresh start for my children and myself in life."

No reply was received by her to this letter nor to her two previous ones.  Following her release from prison she was arrested on 10th August 1986 on foot of the first warrant.  It is in respect of that arrest and consequent imprisonment that this application has been made.

In this case also the same procedure for the issue and execution of warrants applied.

I have no doubt that the procedures adopted by the Gardai were unfair. Although the sentence of the Prosecutrix was affirmed on the 25th February, no effort was made to obtain the issue of the appropriate warrant until the 12th April. Although the previous sentence had been affirmed on the 25th February, the Prosecution at the hearing on the 26th March was unaware of that fact since the Court was not so informed.  Although the Prosecutrix wrote on three occasions to the Garda Authorities, they chose on each occasion to ignore her communication.  On top of all this, had the warrant been issued and executed promptly as it ought, the Prosecutrix would have served her sentence    concurrently with that imposed on the 26th March, if indeed  the District Justice would have regarded any such sentence as appropriate in the true circumstances.  Having regard to all these matters, justice could not be seen to be done if the Prosecutrix was now required to serve her first sentence.

In any event there was unreasonable delay in the execution of the warrant having regard to the known whereabouts of the Prosecutrix during the relevant period and on this ground alone the arrest was unlawful.  It is not necessary to consider whether justice requires that the other matters relied upon by the Prosecutrix would have led to the same result.  The relief sought by the Prosecutrix will be granted. For the reasons already
indicated the relief sought by the Prosecutor will be refused.