Arrest of prisoner more than four years after absconding was unjust

McKechnie J (nem diss): Prisoner re-arrested several years after absconding from open prison - whether re-arrest was unlawful - sentence in 2009 to 16 months' imprisonment - transfer to open prison - escape from custody by walking out without permission - failure of Gardai to regsiter escape on 'PULSE' database - re-arrest in 2014 - judicial review - release on bail pending hearing - breach of constitutional justice - whether power to arrest an absconded prisoner should be exercised in accordance with constitutional principles of fair procedures - whether delay could render arrest and detention unlawful - whether arrest in instant case was unlawful, four years and seven months after absconding - conflict of evidence - lack of warrant for arrest of escaped prisoner.

"It appears that the gardaí first made efforts to locate Mr. Finnegan aroundJune, 2014, some four years and seven months after he walked out of Shelton Abbey. There is no evidence that the gardaí in Tallaght were aware that he was unlawfully at large during this period."

"Applying that criteria to the facts of this case, it must firstly be noted that Mr. Finnegan with full deliberation knew very well that immediately upon leaving Shelton Abbey he was unlawfully at large. At no time after that event took place could he have been under any misapprehension in that respect. As against that however, the admitted delay of almost four and a half years before any step was taken, the fact that he resided openly and in the locality of his natural habitat, the fact that he engaged in family life and had a daughter with his partner, are all matters which have to be assessed so as to reach a conclusion on the test above set out. Having considered the matter and notwithstanding the seriousness of absconding and remaining at large unlawfully, I believe that the factors otherwise identified would make it not simply unjust but also oppressive and invidious to have him returned to serve the balance of his sentence."

O'Donnell J (concurring): Culpable and inexcusable delay in executing a committal warrant - comparison with extradition cases - lapse of time and exceptional circumstances - prosecutorial delay.

"There is a power (and it might be said a duty) of arrest and detention of a person pursuant to a warrant. That does not deprive anyone of a constitutional right. The constitutional right involved, or, as it is sometimes put, engaged, is the guarantee that no person should be deprived of liberty save in accordance with law. But the execution of a valid warrant is a classic example of a lawful deprivation of liberty."

"The question of prosecutorial delay is relevant here, because the plaintiff could presumably be charged with the offence of escape from lawful custody. It is useful to consider, therefore, whether, on the existing jurisprudence, a plaintiff could succeed in obtaining prohibition of any such trial. If, as it seems, he would be unlikely to do so on the grounds of culpable delay alone, then a legitimate question arises as to why the same delay could prevent the execution of an original warrant of committal, when there is no impact on a trial process, and indeed no procedures involved at all."

" With great respect, I would not myself consider that the basic error made here in failing to place the fact of the applicant’s absconding on the PULSE system, even coupled with the length of time which passed before the applicant was detained, would reach that point. Accordingly, I would uphold the decision of the Court of Appeal on the analysis of delay in this case. However, there are particular and additional features in this case which also require to be considered now. The applicant was convicted of the original offence on 19 November 2008. He left Shelton Abbey on 31 October 2009. While the legal argument in this case has focussed on the delay of four years and seven months between 1 November 2009 and 1 June 2014, five more years have elapsed during which the appellant has been at liberty, and, moreover, in circumstances where his claim succeeded in the High Court. The issue of principle having been resolved, it would, I think, be invidious to return the appellant to prison at this stage. In those circumstances alone, I would set aside the decision of the Court of Appeal."

Clarke CJ (concurring): Delay pending completion of proceedings.

"However, I would not be inclined to place any significant weight on the factor identified by O’Donnell J. towards the end of his judgment being the fact that a further period of the order of five years has elapsed during the currency of these proceedings during which period Mr. Finnegan has been released on bail. If it were not appropriate to determine, at the time when these proceedings were commenced, that the wholly exceptional circumstances which would warrant the non enforcement of an otherwise valid warrant were present, then I do not consider that the fact that it has taken some time for these proceedings to come to a final resolution could weigh significantly in the balance."