THE HIGH Court has directed an inquiry into the legality of the detention of a man currently serving a 10 year prison sentence for the armed raid of a post office.
At the High Court Mr Justice Gerard Hogan directed an inquiry pursuant to Article 40.4.2 of the Constitution into the continued detention at Cork Prison of Michael O’Callaghan.
Mr O'Callaghan was found guilty of robbery and possession of a firearm by a jury at Cork Circuit Criminal Court in February 2011 and was subsequently jailed for 10 years. He has an appeal lodged with the Court of Criminal Appeal against his conviction.
Mr O'Callaghan with an address at Kilbarry Place, Farranree sought an inquiry on the grounds that evidence used against him during his trial by the Director of Public Prosecutions was obtained with invalid search warrants.
Mr O'Callaghan, who wrote to the High Court seeking an inquiry, is claiming his detention is invalid, and is seeking an order from the High Court that he be released, arising out a Supreme Court decision earlier this year striking down Section 29 (1) of the Offences Against the State Act.
The Supreme Court found in a case known as the Damache case that the section was repugnant to the Constitution because it permitted a search of a person’s home on foot of a warrant not issued by an independent person.
Article 40.5 of the Constitution expressly provides a person’s home is inviolable and shall not be forcibly entered except in accordance with law.
The Damache case related to Ali Charaf Damache who was arrested as a suspect in an alleged conspiracy to murder Swedish cartoonist Lars Vilks over his drawing of the prophet Muhammad.
Mr Damache successfully challenged the validity of a warrant issued under Section 29 to search his home by a Garda involved in investigating the matter.
A number of other convictions in unrelated cases have been quashed as a result of the Supreme Court's decision.
In his application for an inquiry Mr O'Callaghan is claiming that the ruling striking down Section 29 also applies to him, and that he should be released from prison.
The Judge said while the CCA maybe "the best vehicle" to deal with Mr O'Callaghan's contentions, he said that given the points raised in regards to the validity of Mr O'Callaghan's detention he was ordering that an inquiry take place.
Mr Justice Hogan directed that the inquiry be made returnable before him on Thursday.