Brennan -v- District Judge Brennan & Anor
High Court
Judgment was delivered on June 18th, 2009, by Mr Justice Peart
Judgment
An order placing a bail applicant under 24-hour house arrest while awaiting trial was made without lawful basis, and without any justifying evidence.
Background
The applicant, John Brennan, was charged on January 9th, 2009, before District Judge Flannan Brennan in Drogheda District Court with three offences: assault, robbery of a box of cigarettes and the possession of an offensive weapon, an iron bar. He pleaded not guilty. At the time he was on bail awaiting trial in the Circuit Court on another offence. The DPP asked that he be tried on indictment in the Circuit Court on these offences too.
His solicitor applied on his behalf for legal aid and bail. The prosecuting garda confirmed he lived at the stated address and that he had complied with the terms of his previous bail. He asked that strict signing-on conditions be attached to bail, if granted. The applicant’s solicitor pointed out that he enjoyed the presumption of innocence on the charges on which he was already awaiting trial.
Following the garda comments, Judge Brennan said he would place the applicant under “house arrest” and indicated he had a choice, stay in his own house or go to a “bigger house” (prison). He remanded him until January 16th, requiring that he stay in his house 24 hours a day, with the exception of January 13th, when he was due to appear in the Circuit Court. Bail was fixed at €500.
On January 16th his solicitor said that his Circuit Court case had been deferred until January 30th, and applied for a variation of the bail terms, stating that the house arrest was unduly onerous.
According to his affidavit to the High Court, he told the District Court that a house arrest bail order was wrong in principle, and that its imposition did not address any of the usual bail objections, such as the possibility that the applicant might interfere with witnesses or not turn up for his trial.
He said that Judge Brennan had stated that “there were too many people on the streets”. He permitted the applicant to go to Mass if he wished, and attend a meeting with the probation service, but otherwise maintained the house arrest. The applicant was remanded until February 3rd.
The solicitor also stated in his affidavit that a house arrest bail order had been made by Judge Brennan in relation to others, though mainly minors. He said this was relevant to seeking a declaration in these judicial review proceedings that such an order was bad in law, invalid and of no legal effect.
Counsel for the applicant, Micheál P O’Higgins SC, said that he was bringing judicial review proceedings, rather than an appeal, because he considered the order bad in law.
He said that house arrest was a disproportionate and unnecessary and unjust interference with the applicant’s social life and his ability to carry out normal tasks such as seeking work or collecting his social welfare entitlements. He said that the use of the word “place” in the 1997 Bail Act did not mean a specific house on a 24-hour basis, but rather meant district, such as a town or village.
He pointed out that the applicant was entitled to the presumption of innocence in relation to the charges already pending, and also referred to the judge’s remark that “there are too many people on the streets”.
He said there was no evidence before the court that could justify a house arrest order, and not even sufficient evidence to justify a night-time curfew.
Kieran Kelly BL, for the respondent, said that the judge could have refused bail, but to assist the applicant permitted him to remain on bail subject to the condition that he did not leave his home.
He said that the applicant had acquiesced in the order by entering into the recognisance sought.
Decision
Mr Justice Peart said that the applicant had signed the bail bond simply in order not to remain in prison, and this should not be taken as acquiescence.
“I am satisfied that there was no lawful basis for the respondent to make the order he did in this case,” he said. “There was no objection to bail mounted by the prosecution, albeit that the prosecuting garda stated that if bail was to be granted it should be subject to strict conditions.”
The only evidence before the judge was that the applicant was before the Circuit Court on another offence, and that these alleged offences had taken place while he was on bail. The applicant was entitled to the presumption of innocence in relation to these offences.
He said the order made was an “extreme order amounting to a total and unreasonable restriction upon the liberty of the applicant.”
He agreed with Mr O’Higgins on the meaning of the term “place” in the Act, and said that the confinement of a person to a particular house or even a part of a house amounted to such a draconian limitation on the freedom of movement and liberty of the citizen that it would require a very specific and clear legislative provision. Such did not exist.
He pointed out that the European Court of Human Rights considered house arrest to be a deprivation of liberty.
Granting the order sought, he said that whether interpreted with or without reference to the European Convention on Human Rights, the relevant section of the Bail Act did not provide a lawful basis for the imposition of a 24-hour house arrest order as imposed in this case.
The full judgment is on www.courts.ie
Lawyers: Micheal P O’Higgins SC and Lily Buckley BL, instructed by Paul A Moore, Drogheda, for the applicant; Kieran Kelly BL, instructed by the Chief Prosecution Solicitor, for the respondent