The applicant was detained pursuant to Section 9(8) of the Refugee Act 1996. He sought bail pending the determination of judicial review proceedings. Counsel for the applicant contented that the granting or otherwise of bail in these circumstances differed in no material respect from those applicable pending a criminal trial and suggested that the only real considerations were whether the Court was satisfied that the applicant would attend the hearing and be available to be recommitted to prison if unsuccessful. Counsel for the Respondent accepted that these were material considerations but suggested that the Court had a wider range of matters to take into account than those which the Court would take into account in considering bail pending a trial on a criminal charge.
The High Court refused bail. The Court agreed with the Respondent that it could take into account a wider range of matters as compared with considering bail pending a criminal trial. The Court found that the fact that the applicant had not been charged with any criminal offence was not the issue. The Court stated that the entitlement to bail in criminal proceedings is based on the presumption of innocence, whereas the reason the applicant in the instant case was in detention stemmed from Section 9(8) of the Refugee Act 1996 and accordingly, the applicant was not in the same position as a person accused of a criminal offence and consequently had no presumption that went to his benefit that the District Court order was invalid.
The Court considered that a significant portion of the applicant’s challenge was on Constitutional grounds, that the impugned provision enjoyed a presumption of Constitutionality and that weight should be given to the fact that detention was on foot of an order, that was manifestly not ill-founded, of a Court of competent jurisdiction. On the evidence, the Court also found that it was probable that the applicant would not attend the trial of the substantive issue.
