P.(D.) v. Governor of the Training Unit & Ors

A matter was canvassed at the opening of this appeal as to whether there was, in fact, before this court an appeal from the decision of the learned High Court judge refusing to make absolute any conditional order of Habeas Corpus and simply then proceeding to consider the matter in the context of a judicial review application. The court has asked the registrar to see if he can ascertain what notes there are of the judgment of the court on that occasion with Mr. Justice Murray presiding and I will ask the registrar, since the matter has been canvassed, to read his note of what transpired.

I have asked the registrar to read the above, since there was uncertainty as to what exactly transpired on the last occasion when the matter was being mentioned. However, in my view, whether in fact the Habeas Corpus proceedings were struck out by this court is not really of any practical significance or importance at this stage.

While in the circumstances of this case, Dr. Forde takes no objection to the respondents being there and hardly could, as they were there anyway, or to their even being heard on legal matters, he says that it was not appropriate that they should be allowed put in material on affidavit because this was essentially converting a leave application into a trial of the judicial review proceedings, a trial of the actual substantive judicial review proceedings themselves, and that was incorrectly to conflate the whole procedure.

I am satisfied that accordingly the determination by the High Court judge on matters of fact was solely on the basis of uncontested facts. He did not arrive at his determination on the basis of facts which were contested on the affidavits before him.

In those circumstances I would dismiss the appeal and affirm the order of the High Court.