High Court of Ireland Decisions

 

THE HIGH COURT

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

           

[2025] IEHC 247

RECORD NO. 2025 609 SS

 

BETWEEN

COLM M. GRANAHAN

APPLICANT

-AND-

GOVERNOR OF MOUNTJOY PRISON

AND

GOVERNOR OF CASTLEREA PRISON  

RESPONDENTS

  

 

Ex tempore Ruling of Mr. Justice Mark Heslin delivered on the 25^th day of April 2025

1.            Today, Mr. Colm Granahan makes an application seeking that this Court would direct an enquiry under Article 40.4.2. of the Constitution. He opened his affidavit in full and I will presently come to certain averments which he makes. He also handed in a number of exhibits and referred to those, namely, documentation produced by the County Registrar concerning possession of property comprised in Folio RN3752, County Roscommon, in proceedings brought by the KBC Bank against Mr. McGann, bearing record no. 2079/2018. 

 

2.            Those exhibits included an execution order and Mr. Granahan also opened what appears to be a transcript regarding certain proceedings in which questions were put and answered regarding the grant of possession and the execution order. 

 

3.            Exhibits which I received yesterday and retain also include some twelve affidavits, sworn on the 25^th March 2025, and each are identical in form although sworn by twelve different individuals. Each affidavit identifies the deponent as "a sovereign living person ever present from fertilisation until last breath" and the relevant averments are, in short, "I say the evidence contained in the affidavit of Colm M. Granahan is true and factual". 

 

4.            Mr. Granahan affidavit identifies himself as the applicant and names the governors of both Mountjoy and Castlerea Prisons as the respondents.

 

5.            Yesterday, Mr. Granahan was in court before me and ultimately decided not to proceed with the application yesterday in circumstances where, unfortunately, some documentation was left on the train which he wished to obtain and that he has since obtained. This comprises the exhibits I have referred to concerning the possession and execution regarding the property. 

 

6.            Yesterday I asked Mr. Granahan questions about his role in the application, given the very obvious fact that he himself is not detained. He confirmed yesterday that he is not a solicitor or barrister and does not hold himself out as having any legal qualification. He also confirmed yesterday, and reconfirmed again today, that he does not represent others. He would not answer me when I asked whether any of the three individuals identified in para. 7 of his affidavit were even aware of today's application, but it is clear that he moves it in the following circumstances, namely: "...to defend the sovereign men and women of the Irish Republic specifically the McGann family..." (para 2 of his affidavit).

 

7.            Because of what I have said so far, it seems to me that there is an essential preliminary issue which I have to address. The nature of an Article 40.4.2 enquiry, the nature of habeas corpus application, is so important that this Court should never allow an undue focus on formality to undermine the constitutional protections which flow from Article 40. Nevertheless, and leaving entirely to one side the fact that Mr. Granahan does not have a right to represent others in legal proceedings, this Court is met with a situation where the application is neither moved by nor on behalf of any person who is detained. Instead, the manner and basis for Mr. Granahan moving the application is set out in the following terms and I now propose to quote verbatim from paras. 1 - 3 of his affidavit:

 

"(1)      I stand as a free, living man upon the land known as Eire under the sovereign authority proclaimed on Easter Monday 1916, and governed by the lawful, unrevoked 1919 Constitution of the Irish Republic. I do not recognise or submit to the jurisdiction of any corporate State, legal fiction, or commercial construct.

(2)        I act herein in full lawful standing and with moral duty to defend the sovereign men and women of the Irish Republic specifically the McGann family of Falsk, Strokestown, Co. Roscommon who were subject to criminal trespass, armed intrusion, and unlawful eviction from their private and inviolate home on 11 December 2018.

(3)        Said home and lands are recorded in E-I-R-E.ie and under UCC filing as sovereign estate, not subject to corporate or Crown-derived commercial jurisdiction."

 

8.            That is the standing Mr. Granahan asserts in purporting to bring this Article 40.4.2 application today, but it seems to me that, in circumstances where we are not in a situation where any of the applicants has asked him to represent them, where he is [not] bringing an application on their behalf, that this is not an enquiry I should direct. However, lest I be entirely wrong in that view I want to turn to the substance of the application beginning with some important legal principles. 

 

9.            The first is to say that when the court is dealing with an Article 40 application in a 'post-conviction' scenario, as here, a higher standard applies and authority for that proposition can be seen in the decision of Mr. Justice Hederman in Hardy v Ireland [1994] 2 IR 550, at p. 562. 

 

10.         The then President Maguire made clear in The State (Cannon) v Kavanagh [1937] IR 428 that it would require: "the most exceptional circumstances for [this Court] to grant even a conditional order of habeas corpus" and that comment was made in relation to a person serving a sentence following conviction on indictment. 

 

11.         More recently, in The State (Wilson) v Governor of Portlaoise Prison (unreported decision of the Supreme Court of the 11^th July 1968) Mr. Justice Walsh stated:-

 

"On a habeas corpus application by a person detained by order of a court whether under sentence following conviction or otherwise, matters dealing with the weight of the evidence or irregularities of procedure which do not go to the jurisdictional basis of the trial or other court proceedings are not relevant unless the irregularities or the procedural deficiencies complained of are shown to be such as would invalidate any essential step in the proceedings leading ultimately to his detention."

 

12.         More recently again, in the 2010 decision by Mr. Justice Charleton in Premier Mthethwa v Governor of Cork Prison [2010] IEHC 380, Charleton J. stated that it is only in circumstances of a fundamental denial of the fair procedures that are inherent in the criminal process that any detention based on a sentence following on from conviction at a criminal trial could be said to lack a lawful basis. 

 

13.         Armed with those principles, I now turn to the averments made by Mr. Granahan. He avers at para. 5:

 

"The actions taken on 11 December 2018 by private agents purporting to be court officers were criminal in nature and executed upon forged fraudulent and counterfeit court orders:

- A fabricated Circuit Court Order (Record no. 2079/2018)

- A forged High Court Execution Order (Record no. 2009/544SP), with a false date of 8 August 2018, and bearing a forged signature of the Registrar of the High Court Central Office. 

 

14.         At para. 6 he avers:

 

"These orders were used to violently enter, terrorise and eject the McGann family,

without any valid cause, standing, or jurisdiction. Two of the evicted David and Geraldine McGann, had no dealings whatsoever with KBC Bank or any financial institution."

 

15.         I pause to say that the possession order, be it a Circuit Court order or a High Court order, and an execution order, be it a High Court order or a Circuit Court order, in respect of proceedings seeking possession of property are relevant of course on the civil side. They are relevant to the claim for possession by one party, of property, against another, but they do not provide the jurisdiction of a criminal court in relation to alleged wrongs by those accused. 

 

16.         Continuing with Mr. Granahan's affidavit, he avers at para. 7:

 

"Following this, in a further miscarriage of justice the same forged High Court order was presented in the criminal trial (Record no. 0025/2019), where three innocent men - Martin O'Toole, P.J. Sweeney and Paul Beirne - were convicted based on false evidence, perjury and collusion involving KBC agents and representatives

 

17.         At para. 8 he avers:

 

"I place on record that this constituted fraud upon the court, misfeasance in public office, perjury and conspiracy to pervert the course of justice." 

 

18.         Later, at para. 14, he avers:

 

"I further affirm that the actions taken by the three convicted men - O'Toole, Sweeney and Beirne - in removing the trespassing agents from the McGann home were acts lawfully compelled under the Law of necessity. Said agents were private, foreign security personnel operating unlawfully on the sovereign territory of Eire, under false documentation, outside jurisdiction, and without security licences."

 

19.         He goes on, at para. 15, to make averments in relation to the law of necessity and he avers:

"...These men did not act as aggressors, but as lawful defenders, compelled by circumstance, in the face of State failure, Garda complicity and violent foreign trespass". 

 

20.         At para. 16, the following averments are made:

 

"Therefore, no crime exists in their actions. They acted lawfully, to restore peace, prevent violence, and protect life and property. Their convictions are not only unsafe but entirely void, being based on false instruments, perjured testimony, and a total miscarriage of justice". 

 

21.         Leaving aside the reality that this is not an application made by or on behalf of anyone who is currently detained; leaving aside that none of the three individuals referred to allege that they are currently being detained other that in accordance with law; leaving aside that the assertion of a miscarriage of justice is made not by a detained person [but] by Mr. Granahan who is plainly at liberty, it is fair to say that the affidavit before me contains what can fairly be described as 'bare' assertions of perjury, miscarriage of justice and false evidence. 

 

22.         Whatever the potential relevance to a civil action for possession of property and execution orders, those documents cannot conceivably undermine the jurisdiction of the criminal court of trial which convicted the three individuals.

 

23.         That leaves me, for today's purposes, with 'bald' assertions of a miscarriage of justice, coupled with a 'bald' assertion that there was no crime; that the three individuals did not act as aggressors; that they acted as lawful defenders in the face of what is alleged to be State failure, Garda complicity and violent foreign trespass. With respect, not only are these assertions made in the most 'bald' of terms, there are no facts averred to which would provide any credible basis for those assertions.

 

24.         Turning to the relief which Mr. Granahan seeks, beginning with the words: "I demand, in my full sovereign capacity, that: Immediate remedy be provided for the men wrongfully convicted", leaving to one side, entirely, the reality that this application is not by or on behalf of those men, the question of a wrongful conviction is a matter on the evidence before me for an appeal to the Court of Criminal Appeal. Whether any such appeal has been brought is entirely unknown from the affidavit before me. The outcome of any such appeal is equally unknown. There is simply nothing in the evidence before me - and guided by the principles from the jurisprudence I quoted earlier - which would provide any basis for directing an enquiry. 

 

25.         Turning to the second item of relief which Mr. Granahan demands in his "full sovereign capacity", namely, "An independent judicial enquiry be launched" there is no jurisdiction for me to do so in this Article 40 application, nor is there a basis in fact for directing such a judicial enquiry, even if this Court had such a jurisdiction, which it does not. 

 

26.         As to the third aspect of relief, namely, "All fraudulent instruments be struck from the record", again, there is simply no basis in fact or law for me doing so. 

 

27.         The final aspect of the relief is described as "All agents involved in the creation and use of forged documents be prosecuted" but at the risk of stating the obvious, this Court is not a prosecutorial agency. The question of prosecutions are, for very good reason, dealt with by an entirely independent body, namely, the Director of Public Prosecutions.

 

28.         For these reasons, I am refusing to direct an enquiry, but it is also appropriate to say that overnight it was brought to my attention that this is certainly not the first Article 40 application which Mr. Granahan has made. 

 

29.         I have in front of me a copy of an order made by Ms. Justice Geraghty on the 16^th December 2024 which records that Mr. Granahan sought leave to apply pursuant to Article 40.4.2 for an enquiry and that the application was refused. I also have in front of me an order of the very same date, the 16^th December 2024, which makes clear that an application was also made by Mr. Granahan to Mr. Justice Cregan, who also refused to direct an enquiry. I have, in addition, a copy of an order made on the 26^th March 2025 which records that Mr. Granahan, again, made an application to Mr. Justice Cregan, who refused to direct an enquiry under Article 40. This brings me to some further important legal principles. 

 

30.         I accept entirely that there is an ongoing constitutional obligation on this Court placed by Article 40.4.2 which persists so long as an individual is in detention. However, this does not mean that an individual can bring repeated applications under Article 40 based on the self-same grounds. 

 

31.         In Bolger v Garda Commissioner, a reported decision [2000] 1 ILRM 136 at p. 146, Mr. Justice Lynch stated that where detention was declared lawful it did not preclude "a fresh application under Article 40 to the High Court if the detention became unlawful... for other reasons than those dealt with in the judgment...".  In other words, the "other" reasons is the point. There would have to be new grounds. 

 

32.         I do not have the benefit of having before me the affidavit and exhibits which were before (i) Ms. Justice Geraghty on the 16^th December; (ii) Mr. Justice Cregan on the 16^th December; or (iii) Mr. Justice Cregan on the 26^th March, but it needs to be emphasised that unless there are new grounds it is wholly inappropriate for repeated Article 40 applications to be made. In this, I derive support from the decision of O'Hanlon J. in McGlinchey v Ireland [1990] 2 IR 215 at p. 216, where the learned judge emphasised the need for new grounds, stating that the applicant was "debarred from presenting further applications to the court unless it could be shown that further grounds can be put forward which have not been considered in the course of earlier applications". I want to make that known to Mr. Granahan, for his benefit and I now propose to draw this ruling to a conclusion summarising that: first, I am satisfied I should refuse to direct an enquiry because this is not an application brought by or on behalf of anyone and Mr. Granahan is plainly at liberty, himself. Second lest I be wrong not to look at the substance, there are no grounds beyond 'bare' assertions not underpinned by fact and certainly nothing which would come close to ousting the jurisdiction of the criminal court of trial which convicted the individuals in question; and to reiterate the third point, it is inappropriate to use the Article 40 procedure as a vehicle to repeat complaints, as opposed to new grounds being proffered in any fresh application, but that is not to say that it is legitimate to bring any application other than for, or on behalf of, a detained person.