The case of Herrera v An Garda Síochana & Others
The plaintiff in this case was an Argentinean national who had been resident in the State since 2012. He was arrested in February 2013 in connection with allegations of serious criminal offences. It was at this stage that the arresting Gardaí took his Argentinean passport. The plaintiff was then charged under S.3 of the Non-Fatal Offences Against the Person Act 1997 and remanded in custody.
While initially refused bail in the District Court in April 2013, the Court then went on to release the applicant following a Habeus Corpus inquiry (a recourse in law with which a person can report alleged unlawful imprisonment to the Court). In the course of these proceedings the applicant voluntarily agreed to return to the District Court on the next date and stay away from the Mullingar area and the alleged victim. The plaintiff was not subject to any travel or travel document restrictions under the Bail Act 1997.
In early May 2013 the plaintiff’s solicitor contacted the Gardaí at the arresting Garda Station in Mullingar requesting the return of the plaintiff’s passport. No formal reply was made by the Gardaí, but the plaintiff’s solicitor was told the passport would not be released at that time.
In this Judicial Review case the plaintiff sought the return of his passport from Gardaí. The plaintiff stated that he had a job offer in Spain, where he is entitled to work, having both a work and residency permit. The plaintiff booked a flight to pursue this employment, but was not able to travel as he did not have his passport. The plaintiff was seeking an interlocutory mandatory injunction, which would compel the return of his passport.
The Trial Judge held that the first legal issue to be considered was whether the Gardaí had any lawful basis for retaining the Plaintiff’s passport, with regard to the fact that the Plaintiff was not subject to any legal constraints as to travel or travel documents. It was noted that retaining the plaintiff’s passport in circumstances such as these has the potential to deprive him of his constitutional right to travel. For that reason the basis for retaining the passport would have to be clearly defined in law.
Counsel for the State acknowledged that in these circumstances there was no “relevant statutory provision or common law power” to be cited which would have enabled the Gardaí to retain the Plaintiff’s passport. Counsel for the State argued however that general rules on mandatory interlocutory injunctions meant that the Court should exercise reluctance in considering the granting of the injunction.
Traditionally Courts have been reluctant to grant mandatory interlocutory injunctions as these have the effect of “disposing in substance” of the proceedings at hand, as was pointed out in the case of Attorney General v Lee  IESC 80.
The Trial Judge in this instance adopted the approach of the Supreme Court in Lee in their consideration of whether to grant the injunction by considering whether the defendants can show that they have any potentially sustainable defence to the plaintiff’s action.
The Court found that the defendants would in this instance have to show an “arguable defence” to the plaintiff’s allegation based on either statute or the common-law. The Court found that no such defence was put forth by the defendants. As a result the Court found the plaintiff’s entitlement to an injunction was “all but unarguable”.
The Court also pointed out that Article 40.3.2 obliges the Courts to secure litigants an effective remedy to vindicate their constitutional rights to persons and property and not simply to afford a remedy which is purely theoretical or illusory in character. The Court found this was especially so where injunctive relief is needed to secure the Plaintiff’s core constitutional rights, and a refusal of that relief would hinder the exercise of those constitutional rights.
The Court concluded by granting the Plaintiff’s mandatory interlocutory injunction, with regard to the need to travel and the Gardaí’s lack of legal basis to retain the passport. The Trial Judge then goes on to emphasise “for the avoidance of any possible doubt” that this judgement does not apply to persons who are subject to constraints relating to travel or travel documents under the Bail Act 1997 to secure bail.
This significance of this case is that it confirms that there is no legal basis at common law or in statute that would entitled the State to retain a person’s passport or other travel documents. However, it is important to note that this is only applicable for persons who are not subject to travel or travel document restrictions under the Bail Act 1997.