His client was released from detention yesterday afternoon (11 April).
“Detention is detention, and it has to be done on good information, in an evolving situation, and not on the back of an envelope,” he said.
Dynamic situation
“The Travel Expert Advisory Group only meets every two weeks. Maybe they are going to have to meet every week, given that this is a dynamic situation,” barrister Conor Power said.
Speaking about his team’s handling of the case, he said: “The first issue we faced was whether this was detention, as opposed to some other form of confinement.
“Personally, I couldn’t conceive of it not being detention given that, while the doors might have been unlocked, as soon as the person left the mandatory hotel quarantine, they were liable to e detained by a member of An Garda Síochána and taken back, and committing a criminal offence by so doing,” he said.
And if the detainee acted in breach of a direction from a garda to go back, that created a double offence, he added.
High Court ‘detention’ challenge
Lawyers for the Minister for Health accepted on Saturday that Inbar Aviezer, who had been vaccinated against COVID-19 and had tested negative after arriving from Israel, was in detention.
Aviezer took the High Court action under Article 40.4.2 of the Constitution, challenging what she described as her unlawful detention at an airport hotel since Wednesday 7 April.
The challenge was brought against the Minister for Health, and hoteliers TIFCO Ltd, and TIFCO Management Services (Ireland) Ltd.
Conor Power SC said the woman’s legal team relied on recent authorities from the UK Supreme Court about common-law imprisonment, where there was a curfew imposed on the public.
‘Far greater imposition than a curfew’
“This was a far greater imposition than a curfew, and there was good ECHR law to the effect that house arrest is, indeed, a deprivation of liberty for the purposes of Article 5,” he said.
The first issue to be addressed last Saturday was whether mandatory hotel quarantine (MHQ) was detention for the purposes of habeas corpus.
“The State conceded that [it was] in this particular case,” he said, and thereafter the judge ordered an inquiry into this particular detention.
The next question was whether it was lawful detention. The legal team examined the statutory tests for adding Israel to the MHQ list, which were: known transmission of the virus, or a threat of its introduction.
Scientific tests
The scientific tests used by the respondents set out when that test would be satisfied – a transmission of over 500 per 100,000, or 2.5 times that of this country.
Israel, however, had a rapidly improving situation since mid-March, Conor Power SC explained.
While Israel was recommended for the MHQ list on 15 March, it wasn’t activated by the Government on that date.
On 1 April, the Government indicated its intention to add Israel, which was designated on 6 April. This then became the date to adjudicate the statutory test, the senior counsel said.
“As of 6 April, Israel’s incidence rate did not justify it being on the MHQ list, and I believe, ultimately, that’s why the case was settled. In the absence of a judgment, I can’t say that definitively, but they removed Israel, and retrospectively removed the obligation to quarantine.
“As of Friday night, the Government was still saying that people in quarantine from Israel would have to finish their term. That was a change of course, and I believe it’s related to our case, and that point about the scientific basis for being on the list,” Conor Power SC concluded.