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1. The contentious matter at the core of this appeal is a delay of approximately two years and nine months between the issue of warrants and their execution. There was no significant dispute as to the facts. The issue raised relates to the law.

2. James Jessie Dalton, hereinafter referred to as “the applicant”, was convicted of seven offences contrary to the Fisheries Acts, 1959 to 1980 at Kilbeggan District Court on 26th July, 1995 and was ordered to pay a fine for each of the offences. The time for making payment in respect of five of the offences expired after ninety days and in respect of two offences expired after one hundred and fifty days. It was ordered that, in default of payment of the total sum in each offence, the applicant be imprisoned in Mountjoy Prison for the period of forty-five days. The applicant failed to pay any of the fines. Warrants were issued in respect of five of the offences (more than 90 days having elapsed) on 20th December, 1995 and in respect of two of the offences (more than 150 days having elapsed) on 24th January, 1996. All warrants were transmitted to the Superintendent of the Garda Siochana in Mullingar for execution. On an unknown date prior to 19th February, 1996, the Minister for Justice, in correspondence with Mary Wallace, T.D., indicate that a petition had been opened on behalf of the applicant. Although the precise facts were not before the court it is clear that the petition was commenced for the benefit of the applicant. As a result of the said petition and the practice at the time the gardai refrained from executing the warrants. The gardai received further correspondence on the 28th January, 1997, the 2nd February, 1997, and 7th April, 1997 from the Department of Justice indicating that the warrants were still under consideration and consequently the gardai refrained from executing them. On 8th

3. April, 1998 a general direction was given on behalf of the Commissioner of An Garda Siochana that all outstanding warrants, irrespective of the status of petitions still pending, should be executed. The direction stated:

4. It was accepted by counsel on behalf of the respondents that the applicant was residing at his home at all times and that there was no difficulty in finding him. The words on the face of the warrant appear to have been a device used to enable the warrant to be reissued. These facts were not in issue in the High Court.

5. Article 13.6 of the Constitution provides:-

6. Section 23 of the Criminal Justice Act, 1951, provides:-

7. The law on petitions to the Minister for Justice was stated in Brennan v. The Minister for Justice and ors. [1995] 1 IR 612 by Geoghegan J. He held that the power to commute or remit sentences conferred upon the Government by Article 13.6 of the Constitution should be exercised only in the most exceptional of circumstances. He stated at page 628:

8. I am satisfied that the judgment of Geoghegan J. indicates a correct approach to Article 13.6 of the Constitution.

9. The law on the execution of warrants is also at the kernel of this case. The warrants in issue include the words:

10. And for this the present warrant shall be a sufficient authority to all whom it may concern.”

11. A warrant is a command issuing from the court to the person named, usually the gardai. When considering the matter of warrants in The State (Flynn and McCormick) v. The Governor of Mountjoy Prison (Unreported, High Court, Barron J., 6th May, 1987) Barron J. stated at page 4:

12. The matter of warrants and delays in their execution was considered by Lynch J. in O’Driscoll v. Governor of Cork Prison [1989] ILRM 239. In that case, in April, 1987, the applicant was convicted on charges of assault and malicious damage and sentenced to three months’ imprisonment. He appealed against severity of sentence but, in May, 1987, he withdrew his appeal and made a plea that the commencement of his sentence should be postponed to 1 st July, 1987 on compassionate grounds. The Circuit Court judge acceded to the plea. The applicant undertook to surrender himself to the authorities at 9.00 a.m. on 1 st July, 1987 at Cork Courthouse. On that date the warrants for his arrest and detention were not yet issued and therefore he was not taken into custody. The applicant returned home and made no further attempt to surrender himself. On 30th September, 1987 two warrants were executed and the applicant was lodged in Cork prison. He sought to quash the warrants by way of judicial review on the ground that the delay between 1 st July and 30th September was such that the execution of the warrants would be unjust and unfair and should not be permitted. Lynch J., in refusing the application, stated at page 242:

13. I agree with this conclusion and it seems to me that the question in each case must be, at what point in time should the line be drawn.

14. In the present case, the delay was in the issue of the warrant, not in its execution. This does not affect the general principle because the period which is important is the time between the affirmation of the sentences and the arrest on foot on the warrants. This in the present case was a period of four and a half months. No satisfactory explanation has been given for this delay and in the circumstances I regard it as having been excessive.

15. The nature of a warrant was described in Dunne v. The Director of Public Prosecutions (Unreported, High Court, Carney J., 6th June, 1996). Carney J. stated at page 4:

16. The Courts (No. 2) Act, 1991 creates a six months time frame within which a warrant may be issued for the non-payment of a penal sum. Section 1(1) states:

17. This shows a clear policy of the legislature as to the time within which warrants may be issued. There is then, of course, the law on the re-issuing of warrants which was not argued in the High Court. The warrants, the subject matter of this case, were issued originally within the maximum six months time frame envisaged by the Act of 1991.

18. There are two themes in this case, that of the petition to the Minister for Justice and that of the execution of warrants. Both are actions which occur at the coal face of the interaction between the judiciary and the executive. The checks and balances of democratic government require that they be carried out in a constitutional fashion. This imports constitutionality as to the actions of the organs of government and as to fair procedures for the person affected.

19. The President divided up the delay into three periods of time for analysis. This is an appropriate approach to the analysis of an alleged delay. However, in addition, the overall delay may be considered either as a single time frame or in conjunction with an analysis of particular sections of the time in issue. Thus, the learned trial judge did not err in his approach to the matter.

20. In relation to the first tranche of time, Morris P. recited dates relating to the due date for the payment of fines which were incorrect. The warrants were issued on 20th December, 1995 and 24th January, 1996. The applicant had been given 90 days to pay the fines on five warrants and 150 days on two warrants when the orders were made on 26th July, 1995. Thus, in the circumstances, there was no unreasonable delay in the issuing of the warrants of

21. In February, 1996 the applicant caused a petition to be opened on behalf of the applicant by the Minister for Justice. In accordance with the practice at that time no attempt was made to arrest the applicant while this petition was pending. However, the practice was altered and the changed practice was indicated by a direction on behalf of the Garda Commission, which has been set out above, on 8th April, 1998. Whilst it is understandable, in light of the (incorrect) practice of the time, that the applicant was not arrested by the gardai between February, 1996 and April, 1998, that practice cannot be endorsed by this court.

22. The gardai were informed in April, 1998 that all warrants must be executed as soon as reasonably practicable, that no distinction was to be made between warrants in respect of which petitions had been lodged and other warrants which had not been the subject of a petition and that all warrants should be executed promptly. Notwithstanding the original orders of the court and that direction the warrants were not executed until 1st October. 1998.

23. Morris P. held that there were reasonable grounds for withholding the execution of the warrants during the currency of the petition but that prior thereto and subsequent thereto there was no explanation for the delay offered. Consequently the applicant had established reasonable grounds for withholding the execution of the warrants. I am satisfied that there was a clerical error in the computation by Morris P. of the first period and that in the circumstances that time duration would not of itself constitute an unreasonable delay. In relation to the time when the petition was extant and the gardai (under the earlier incorrect practice) did not arrest the applicant I make two observations. First, whilst the petition was at the request of the applicant the incorrect practice was that of the gardai. Secondly, this practice was contrary to the orders of the court. Albeit that it may have been a

24. The third tranche, from April, 1998 to 1st October, 1998, came at the end of a long duration of time. It came after the warrants had been issued over two years. It came after a very clear direction on behalf of the Garda Commissioner. It came with no explanation for the delay. Indeed, it came including a re-issuance of the warrants. In all of the circumstances I am satisfied that the warrants were not executed within a reasonable time and that this gave rise to an unfair process.

25. Reviewing the delay as a whole, i.e. from January, 1996 to October, 1998, I am satisfied that the warrants were not executed within a reasonable time. There was no evasion by the applicant. In all the circumstances there was unreasonable delay in the due execution of the warrants.

26. In conclusion, I would dismiss the appeal. It is somewhat surprising that there was no application for judicial review of the orders. However, the matter being an inquiry under Article 40.4.2 of the Constitution I determine that the return is insufficient to justify the detention of the applicant.

27. I agree with the judgment of Denham J. and accordingly concur that the appeal be dismissed for the reasons she sets out. There is, however, another aspect of the case on which I wish to add a few words of my own.

28. In the return to the Order under Article 40.4.2 of the Constitution made by the learned President, the Governor simply relied on the warrants which he exhibited. These documents disclose that the warrants were re-issued on three occasions, namely, the 26th January 1997,

29. I have no doubt that this misrepresentation was entirely inadvertent. Indeed, the reason given for the Applicant’s alleged unavailability - that he was resident at a specified address in Castlepollard - is logically incapable of supporting the proposition which the Form of Endorsement requires the guard seeking renewal to certify. This is that “After diligent search.... the person (or sufficient goods of the person) against whom the within Warrant was issued cannot be found”. The guard was using a printed form which envisaged only a small number of contingencies and was attempting to describe within this rubric a situation which was quite outside its scope.

30. However that may be, the result is that the warrants, which alone can justify the Applicant’s detention, and which would be invalid unless renewed, were so renewed on a false basis. Furthermore, the fact that a false basis for renewal was advanced prevented the learned District Judge from becoming aware of the true position. Ms Moorehead, B.L. told the Court, in the course of her very thorough submissions, that the guards simply did not act to enforce the wan-ants because the penalties imposed were the subject of a petition. If this state of affairs had been brought to the attention of the learned District Judge he would have been quite entitled to take it into account in exercising his discretion on the question of renewal. I am not prepared to assume that he would have exercised this discretion in any particular way. The fact remains that he was actually invited to exercise it on a basis which was quite false.

31. I consider that this defect in the warrants is of a much more serious nature than that identified in an affidavit sworn for extradition purposes in McMahon v Leahy [1984] IR 525 .

32. In that case, having identified defects in the swearing of the affidavit, McCarthy, J. said at p.547:

33. This must apply with all the more force where the defect is a false statement in a document grounding the exercise of a judicial discretion.

34. In the course of his judgment, at page 12, the learned President noted the defect to which I have drawn attention but did not find it necessary to rest his decision on it. Presumably for this reason, it was not referred to in the Notice of Appeal and there was no cross-appeal. I would not, however, have been prepared to hold that these circumstances could operate to prevent this Court taking cognizance of the defect in the warrants identified by the President. In my view the procedure laid down in Article 40.4.2 requires the High Court, and this Court on appeal, once a complaint of unlawful detention is made and a return certifying in writing the grounds of an applicant’s detention filed, to order the release of such a person “...unless satisfied that he is being detained in accordance with the law “. The imperatives of this unique procedure seem to me to take precedence over any rule of pleading or procedure. The requirement to be affirmatively satisfied of the legality of an applicant’s detention before declining to order his release does not seem to me to be met by considering only the points made in his initial complaint. It must often be the case, and was certainly the case here, that a particular point would not be within the applicant’s knowledge until after

35. On that basis, also, I would have been prepared to order the Applicant’s release.