Supreme Court rules man's re-arrest after absconding from open prison was unlawful

A young man who absconded from an open prison and lived "in plain sight" for more than four years before re-arrest has won Supreme Court declarations that his re-arrest and subsequent detention to serve out the rest of his 16-month sentence were unlawful.

Mr Justice William McKechnie said, in the circumstances of Mark Finnegan’s case, and despite the seriousness of his absconding and remaining unlawfully at large, his re-arrest and detention was “unjust, oppressive and invidious”.

Factors leading to that finding included the admitted delay of four-and-a-half years and that Mr Finnegan was living openly during this time, not re-offending and had started a family.

The judge noted, through human error, his escape was not registered on the Garda PULSE database so gardaí in his home area of Tallaght were unaware for some four-and-a-half years he was unlawfully at large.

A five-judge Supreme Court this week granted Mr Finnegan’s appeal over his re-arrest.

Three judges – the Chief Justice, Mr Justice Frank Clarke, Mr Justice McKechnie and Ms Justice Mary Finlay Geoghegan - agreed on the basis for that as set out in Mr Justice McKechnie’s judgment.

Mr Justice Donal O’Donnell, with whom Mr Justice John MacMenamin agreed, said the appeal should be allowed on a more restrictive basis.

Mr Finnegan was convicted in late 2008 under the Road Traffic Act of allowing himself to be carried in a mechanically propelled vehicle without the owner's consent.

He was jailed in May 2009 for 16 months and was moved in July 2009 from Wheatfield Prison to Shelton Abbey open prison.

In early October 2009, his brother was admitted to the intensive care unit of Tallaght Hospital and on October 31, Mr Finnegan walked out of Shelton Abbey, with the effect he was unlawfully at large.

Before being jailed, he lived at his family home at Bawnlea Drive, Jobstown, Tallaght, and returned there after absconding. He remained there until 2011 when he moved to Russell Lawn, Tallaght, to live with his partner. They still live there and now have two children, the first born in 2013.

Mr Justice McKechnie noted there was no evidence gardaí in Tallaght were aware Mr Finnegan was unlawfully at large until efforts were made to locate him around June 2014, some four years and seven months after he walked out of Shelton Abbey.

In November 2014, he presented himself by request at Tallaght Garda station where he was arrested and taken to Wheatfield to complete the sentence imposed in May 2009.

He took judicial review proceedings against the Superintendent of Tallaght Garda Station and the Governor of Wheatfield Prison over his re-arrest and detention and was on bail pending the outcome of those.

The High Court found in his favour but the Court of Appeal overturned its decision on appeal.

The Supreme Court agreed to hear Mr Finnegan's appeal over the COA decision on grounds it raised a legal issue of general public importance as to the circumstances, if any, in which delay by gardaí in arresting an absconding prisoner can render their arrest and later detention unlawful.

On Wednesday, the majority court endorsed the analysis of the law and relevant factors as set out in Mr Justice McKechnie’s judgment, leading to a conclusion Mr Finnegan’s case was a rare exception to the general requirement that persons subject of valid warrants for their imprisonment should serve a term in line with the terms of that warrant.

Mr Justice McKechnie said factors to consider in determining whether it is not constitutionally proper to enforce an otherwise valid committal warrant include the activities of the gardaí, the public interest in the execution of warrants and into jailing persons who should be jailed.

Other factors include external circumstances giving rise to the arrest warrant or absconding in the first place and the individual circumstances of the affected person at all relevant times.

A more coherent approach to accommodating such facts is to determine at what point, and in what circumstances, it can be said the exercise of such power to re-arrest or re-commit would be unjust, oppressive or invidious to the affected person.

In the circumstances of Mr Finnegan’s case, it would be not only unjust but oppressive and invidious to have him returned to serve the balance of his sentence.

Mr Justice O’Donnell agreed there are circumstances where it would be no longer lawful to detain a person who had escaped from lawful custody but he considered such circumstances must be “exceptional”.

He agreed with the Court of Appeal’s analysis of the reasons for delay in this case but said additional features, including the fact five years have elapsed since Mr Finnegan’s re-arrest, meant it would be “invidious” to return him to prison now.

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