High Court of Ireland Decisions

1. The applicant applied for an Order of Prohibition on 14th February, 1997 with the hearing continuing on Tuesday 18th, February 1997. The applicant had previously made an ex-parte application on 2nd October, 1995 to the High Court for leave to apply for Prohibition by way of Judicial Review and on that day Carney J. granted leave and restrained the respondent from proceeding with the prosecution of the applicant pending further order. The Application in this Court proceeded on the basis of the following documents:

2. Two preliminary aspects arise on these documents. The first is that it is now common case that the applicant in fact never signed a plea of guilty and any suggestion to this effect is erroneous. Secondly, while it is alleged that the applicant failed to appear on 16th September, 1994 in Drogheda District Court and that a bench warrant was issued for his arrest and that he thus caused delay, nevertheless this Court has been told that he did appear on 16th December, 1994. I propose to ignore this aspect as no complaint is made about the time which has elapsed since 30th June, 1994 in bringing the matter before the Courts. While the applicant's conduct may often be a relevant factor, in this instance the elapse of time in issue occurred before this failure to appear in September 1994. The second part of the applicant's two pronged challenge is based on the alleged delay on the part of the respondent between 21st July, 1993, when the applicant was released without charge, and 30th June, 1994 when an application was made for a summons by the Garda in the District Court.

3. The sequence of events was as follows:-

4. In his Affidavit, the Garda deposed as follows:-

5. The submission is made on behalf of the applicant that:

6. The relevant parts of the sections in issue are as follows:-

7. I have quoted these two sections at length so that s. 4(5) may be read in context as part of a provision which enables a Garda to arrest without warrant a person who may be taken to and detained in a Garda station subject to conditions and with safeguards in respect of the deprivation of the person's liberty.

8. I have misgivings about dealing with this application on the basis of the three Affidavits before this Court and their contents. The evidential basis for an application in respect of compliance with s. 4(5) would be more real in a Court which has heard and can assess the evidence given. Nevertheless, since there has already been an abortive trial, brought about by concern as to the true construction of s. 4(5) of the Criminal Justice Act, 1984, and bearing in mind that there is much to be said for having a resolution by way of judicial review of both the issues raised by the applicant's two pronged attack in advance of any further prospective hearing before a jury, it seems to me that there is merit in dealing with this application for prohibition. I should add that I proceed on the basis that I do not have before me on Affidavit the Book of Evidence or a transcript of the trial before the learned Circuit Court Judge. There seems to me to be a minimal conflict as to what occurred in the Garda Station on 21st July, 1993 and subsequently, save that the applicant would lay stress on the Garda having said in evidence words to the effect that he had sufficient evidence on which to charge the applicant but did not do so and instead chose to release him. On the other hand the respondent emphasises that the Garda has sworn that it was not until 24th November, 1993 that, having completed his investigations, he gathered together all the relevant statements he had obtained and that he submitted his report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons, including the applicant herein. This averment has not been challenged by way of cross-examination of Garda Morrissey.

9. Counsel for the applicant urges that once the confession was obtained there was little further investigation involved. However, I would be slow to ignore this averment on the part of the Garda that he was completing his investigations and that on 24th November, 1993 he gathered together the relevant statements with a view to submitting his report to the Director of Public Prosecutions. Since the onus is on the applicant to satisfy the Court that an Order of Prohibition should issue, I would be reticent in making such an Order in the absence of an evidential basis being laid before this Court bearing out the applicant's contention. If necessary, I would entertain an application on behalf of the applicant to cross-examine Garda Morrissey. However, there is a more fundamental reason founded on the construction of section 4 which would obviate the necessity for such an application to cross-examine. This is based on construing the true meaning of the words of section 4(5) when considered against the background of the then existing law with regard to arrest and detention.

10. The applicant contends that the provisions of section 4(5) are mandatory in that the Garda had said in evidence before the Circuit Court that, after the making of a confession by the applicant, he had sufficient evidence to prefer a charge against the applicant, and that accordingly "he shall without delay charge" the applicant, or cause him to be charged unless the applicant was, with reasonable cause, suspected of another offence. There is no suggestion in this case that any other offence was under investigation.

11. Counsel for the applicant referred me to the unreported judgment of the Court of Criminal Appeal in DPP v Terence O'Toole and James Hickey which was delivered on 20th July, 1990 by Hederman J. One of the issues dealt with was the time at which the Applicants should have been charged. The Court of Criminal Appeal held that it was an ongoing murder investigation and accordingly, while there may have been a confession giving sufficient grounds for the Garda to bring a charge, nevertheless the investigation being still ongoing in respect of murder the Gardaí were entitled to continue the detention of the accused in order to strengthen their case in relation to the offence under investigation. I quote the argument as set out on page 32:-

12. Counsel for the applicant submitted that in the case before this Court the count was one of handling stolen property and suggested that in reality all the transactions in the Book of Evidence involving statements from eight Gardaí and one civilian came to an end on 21st July, 1993. Counsel for the respondent correctly pointed out that the Book of Evidence was not a part of the evidence before this Court and that this part of the applicant's submission lacked evidentiary basis. On reflection, it would seem that this aspect is more appropriately dealt with by the Court of trial which can hear and assess the evidence. However, I do not think that this would justify shirking a confrontation with the more fundamental legal issue raised by the applicant.

13. Counsel for the applicant stresses the admonition of the Court of Criminal Appeal that the Court must be very vigilant to ensure that the Gardaí fully comply with all the provisions of section 4 of the Criminal Justice Act, 1984 with regard to persons who have been arrested and detained thereunder. Any deprivation of a person's liberty must be subject to careful scrutiny. Counsel points out that in the case of O'Toole and Hickey, while the applicants had made inculpatory statements, the investigation in respect of murder was still actively being pursued and the DPP was being kept informed as to the state of the investigation. He contrasts the situation in the applicant's case in which the applicant had been arrested at 8.55am approximately and had made a confession before 10.30 am on 21st July, 1993. Counsel stressed that there is no indication in the Affidavit by Garda Morrissey that he was in communication with the office of the Director of Public Prosecutions. Counsel concedes that the Garda does say that on 24th November, 1993, having completed his investigations, he gathered together all the relevant statements he had obtained and submitted his report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons, including the applicant. Nevertheless, Counsel stresses that the information given by the Garda was somewhat sparse as to what investigations he carried out between 21st July, 1993 and 24th November 1993. Counsel for the applicant argued that the Criminal Justice Act, 1984 brought in an extension of the power of the Gardaí to arrest and detain. By virtue of section 4(1) the suspected offence had to be of 3a serious nature attracting a punishment of imprisonment for a term of five years or more but with considerable safeguards being incorporated into the provisions with regard to the period of detention. Counsel submitted that a literal and strict interpretation should be given to the provisions of section 4(5). He urged that Section 4(5) does not give the Garda an option to charge an accused person at a later time, whether this would be reasonable or otherwise, once the Garda has enough evidence to charge the accused and the ongoing detention of the accused is not necessary for a continuing investigation. In short, he submits that once the Garda has enough evidence he must charge the accused and either release him on station bail or bring him before the next sitting of the District Court or apply immediately to the member in charge of the station to authorise the continued detention of the accused while further investigations are ongoing if such circumstances are applicable. Counsel contends that the Garda does not have any option to defer the bringing of a charge for a decision at a later stage. He urges that the use of the words "without delay" means "immediately" and not "within a reasonable time" or "at a later stage". If the Oireachtas had intended to afford the Garda a lapse of time within which to prefer the charge then this would have been stated; the words "without delay" should not be construed as meaning "within a reasonable time", or "later" because "within a reasonable time" or "later" connote some delay. In support of this, he cited Re Joseph et al. v Minister of National Revenue 20 DLR (4th) 577. This was a tax enforcement case brought in the Ontario High Court of Justice in which Galligan J. on 15th July, 1985 was dealing with the construction of section 231(3)(b) of the Income Tax Acts. The provision authorised the Minister of National Revenue to require a lawyer to produce files relating to his client "within such reasonable time as may be stipulated" in a registered letter or a demand served personally on the lawyer. A demand requiring a lawyer to produce files "without delay" was not authorised by section 231(3)(b). In their ordinary sense the words "without delay" mean "immediately". If Parliament had intended to authorise the requiring of immediate production it might reasonably have been expected to say so. Even without the assistance of this Canadian authority referred to by Counsel, I would have no difficulty in accepting that the phrase "he shall without delay charge that person" on its face means that the Garda who has enough evidence to prefer a charge for an offence against a person detained under section 4 of the Criminal Justice Act, 1984 in a Garda Station must there and then charge the person detained unless that person is, with reasonable cause, suspected of another offence to which this section applies and the member in charge has reasonable grounds for believing that the continuance of the detention is necessary for the proper investigation of that offence. I suspect that this subsection reflects the need to cope with the problem which arose in DPP v John O'Loughlin [1979] IR 85. The accused had been arrested and detained in respect of the larceny of a muck-spreader. He gave an explanation for his possession of the muck spreader and after making inquiries the Garda was satisfied that he was in a position to charge the accused. However, because the Garda was also investigating cattle rustling in the vicinity, he delayed charging the accused for a number of hours while he pursued the investigation into the cattle rustling. The Court of Criminal Appeal held that the detention of the accused became unlawful because he should have been charged in respect of the larceny of the muck spreader and brought before a Court.

14. In short, Counsel for the applicant contends that section 4(5) is mandatory and that, in a case of handling stolen property, in which the count now encompasses acts of dishonestly disposing of stolen property, the proofs would not have been complex in the applicant's circumstances, and accordingly he should have been charged there and then and there was no justification for an ongoing investigation over such a length of time.

15. The respondent contests this construction and submission with regard to section 4(5). Counsel for the respondent points out that the first thirteen grounds at E in the statement are in reality a claim that the Circuit Criminal Court had no jurisdiction to try the applicant as a result of the fact that he was not charged promptly in accordance with section 4(5) of the Criminal Justice Act, 1984. Counsel for the respondent points out that the non-compliance contended for by the applicant in respect of section 4(5) and his release only arose after his inculpatory confession had been made. He argued that the applicant was properly before the Circuit Court and that, when the learned Circuit Court Judge was troubled by the legal point taken in respect of section 4(5), he simply discharged the jury so as to allow the parties to reflect upon the true construction of section 4. The respondent refutes the construction put on section 4(5) by the applicant; he says that in reality the proposition being put forward by the applicant is that if an accused person provides sufficient evidence during the course of an investigation which would warrant a charge being placed against him, then the relevant member of the Garda Síochána has no jurisdiction to release that person. He stresses that it would be an extraordinary proposition to say that a Garda cannot simply release a person who is being detained. He maintains that at all times the Garda has power to release a person in custody, however guilty of the offence being investigated the Garda may regard the person as being. It would lead to grave injustice if, for example, a pregnant shoplifter, with several children in her care, who was held in custody under section 4 were not simply to be released without being charged there and then, when she could, in due course at a less fraught time, be brought on a summons before the District Court. Could it be suggested that an elderly person suffering from a terminal illness and suspected of an heinous crime and detained under section 4, and in respect of whom the Garda has sufficient evidence to charge, could not be released and subsequently brought before the Court at a later stage by way of summons?

16. Counsel for the respondent says that in reality the applicant's first thirteen grounds are contending that the Circuit Criminal Court had no jurisdiction and accordingly prohibition should issue. Counsel argues strenuously that the Circuit Criminal Court did have jurisdiction and that the applicant was properly before both the district and then subsequently the Circuit Criminal Court on a valid return for trial. Even if there was any illegality arising from an alleged failure to comply with the provisions of section 4(5) then this would have no relevance to the lawfulness of his being before the Circuit Criminal Court. Counsel relied on the decision of the Supreme Court in Derek Keating v The Governor of Mountjoy Prison [1991] 1IR 61 in which the Supreme Court upheld a decision of Barrington J. in the High Court in a case which involved section 4 of the Criminal Justice Act, 1984. The issue involved the provision that when a Garda has enough evidence to prefer a charge against a person detained under section 4, he must without delay cause him to be charged unless the person is, with reasonable cause, suspected of another offence to which this section applies. The applicant Keating was arrested by a member of the Garda Síochána on suspicion of an offence of larceny, but succeeded in escaping from the arresting Garda. A warrant was subsequently issued for his arrest. The applicant was later arrested at common law on the larceny charge by the same Garda, was brought to a Garda station and was informed that he was being detained under section 4 of the Criminal Justice Act, 1984. During an interview at the Garda station the applicant confessed to the offence of larceny and was then interviewed about other offences to which section 4 did not apply. The applicant was later brought to the District Court and was charged with the larceny offence. At the District Court hearing the applicant's Solicitor submitted that, since there was no evidence that the member in charge of the Garda station had reasonable grounds for believing that the applicant's detention under section 4 of the Act of 1984 had been necessary for the proper investigation of the offence, the Court should hold that he had not been detained in accordance with law, that he was not lawfully before the Court and that he should, accordingly, be released. That submission was rejected and the applicant was remanded into the custody of the respondent. The applicant applied to the High Court for an order pursuant to Article 40(2) of the Constitution releasing him from custody. The application was dismissed. On the applicant's appeal against the judgment and order of the High Court it was held by the Supreme Court (Finlay C.J., McCarthy and O'Flaherty J.J.) at p. 61 in dismissing the appeal:

17. I would respectfully agree that it is preferable that such matters should be dealt with in the course of the trial when the evidential basis has been laid appropriately for such an application. There is no suggestion in this case that there was a deliberate breach of the applicant's constitutional rights. Accordingly, the District Court had jurisdiction to send the applicant forward for trial and the Circuit Court would have had jurisdiction to proceed with his trial.

18. Counsel for the respondent submits that the provisions of section 4(5) do not preclude a release of the applicant by the Garda. Furthermore, while the Garda may have conceded that he had evidence enough to bring a charge, nevertheless, the Director of Public Prosecutions is the prosecuting authority and he is entitled to bring a charge after due consideration of the contents of the file submitted to him. In DPP v O'Toole and Hickey , the trial Judge stated:- "A subsequent prosecution is at the suit of the Director of Public Prosecutions and it must be for him to decide in those cases where his direction is sought, whether or not there is enough evidence to prefer the charge". The Court of Criminal Appeal seems to have approved of this statement by the trial Judge. It is to be noted that at paragraph 6 of his affidavit, Garda Morrissey says that on 24th November, 1993, having completed his investigations, he gathered together all the relevant statements he had obtained and submitted his report to the Director of Public Prosecutions seeking directions as to what further charges should be brought against the four arrested persons including the applicant. No application has been made to cross-examine Garda Morrissey nor has there been any challenge to the veracity of paragraph 6 of his affidavit. From his affidavit it would appear that Garda Morrissey wanted directions from the DPP in respect of the bringing of the charge. This would appear reasonable when one notes the contents of the alleged confession and in particular the fact that the applicant never confessed to having touched the goods. As for the statement from DPP -v- O'Toole and Hickey that "if it is shown that there are no longer reasonable grounds for suspecting the detainee of having committed the offence, he must be released. If on the other hand, at the same time, there is enough evidence to prefer the charge, then he must be charged without delay", the respondent submitted that this should be read in the context of that case where the detention was continued. This does not preclude the Garda from exercising the further option of releasing the detainee without charge in an appropriate case.

19. A prudent prosecuting authority will often not be satisfied with an inculpatory statement but will wish to compare this with other statements taken in respect of the same transaction and will also wish to study the other pieces of evidence available. Section 4 of the Criminal Justice Act, 1984 is a lengthy section detailing the circumstances in which an accused may be detained. Underlying the section is the assumption that if at any given stage in the procedure the relevant Garda makes a decision that the detainee should be released, then that person can be released and should not be further detained. There is an underlying premise that where an arrest has been made on the basis of a reasonable suspicion but there is a lack of evidence which has been properly checked out in existence, a suspect ought to be released. Such a course of action does not preclude the Gardaí from issuing a summons or obtaining a warrant or, in some instances, re-arresting without warrant at a later juncture should admissible evidence come to light. In my view the provisions of section 4 of the Criminal Justice Act, 1984 are stated in mandatory form in the context of the continuing detention of a suspected person and apply in the context of that person not being released. I have tested this proposition against the contention that the Garda should have charged the applicant on the day of his arrest while he was in detention pursuant to section 4. The submission on behalf of the applicant is that there was sufficient evidence on the basis of the confession to warrant a charge being brought without delay; on this basis once the Garda had enough evidence to prefer a charge, then, if the applicant was not charged and remained in continuing custody, he would have been in unlawful detention. Assuming the applicant was then in unlawful detention, could it be said that the Garda had no authority to release him there and then? It seems to me that underlying the entire of the provisions of section 4 must be the assumption that at any stage in the procedure, the Garda may make a decision that the detainee should be released. This accords with the spirit of section 4 which safeguards the rights of a person who is being kept in custody and to ensure the restoration of liberty with the minimum of delay where appropriate.

20. The applications for Certiorari and Prohibition were refused. While Gannon J. was dealing with a different provision, I would respectfully agree with his view that before any charge of a criminal offence is preferred against a person there is a presumption of innocence and the person is entitled as a matter of fundamental right to the freedom of his person. In my view the entire of Section 4 of the Criminal Justice Act, 1984 is based on the premise that the person being detained may at any stage be released prior to his being charged. Once the applicant was released, he was no longer "detained in a Garda Station pursuant to this section", and he no longer had to be charged without delay.

21. If I am incorrect in these views which I have expressed, then it seems to me that the apparently mandatory provision that the Garda "shall without delay charge that person" must be read subject to the proviso that this applies only if the person is being detained in breach of his right to liberty. There should be attributed to Acts of the Oireachtas and to orders of the Courts a capacity and an intent to operate within constitutional limitations.

22. Counsel for the applicant submits that the time lag between the 21st July, 1993 and the 30th June, 1994 is so long as to be prejudicial to the applicant. No criticism is made of the time lag since 30th June, 1994. The applicant has not sworn an affidavit and there is no allegation of any specific prejudice having been caused by the lapse of time. The submission has been made for the applicant that the issue of guilty knowledge is of importance in respect of the ingredients of handling stolen property and so the state of mind of the applicant at the time of the alleged offence is relevant. The minutiae of what occurred at the interview may be of importance in respect of the admissibility of the alleged statement of the applicant. However, in a general way, delay may cause prejudice to the applicant. I would respectfully adopt the propositions set out at page 12 of the unreported judgment of Kelly J. delivered on 16th May, 1996 in Michael Gibbs v The President of the Dublin Circuit Criminal Court and the Director of Public Prosecutions :-

23. Applying these propositions to the present case, the onus is on the applicant to show that he has been unduly prejudiced by the lapse of time. It is significant that there was no application to cross-examine or challenge Garda Morrissey on the contents of his affidavit. Seven months did elapse between Garda Morrissey, having completed his investigations, gathering together all the relevant statements and submitting the file to the DPP. Directions were received back on the 22nd June, 1994 and summonses were promptly applied for and matters were then processed. There was a time lag of some seven months between 24th November, 1993 and 22nd June, 1994 but no cross-examination was directed towards establishing what, if any, further information the DPP required before making his decision. Counsel for the applicant relied on DPP v Barry Byrne [1994] 2 IR 236 and in particular the principle that in cases where a delay had occurred that amounted to a breach of the defendants' constitutional right to a reasonably expeditious trial no proof of actual or presumptive prejudice was required.

24. The need for reasonable expedition in the trial of a criminal charge was succinctly identified by the judgment of the Supreme Court of the United States in Barker v Wingo 1972 407 US 514 where Powell J. at page 532 stated as follows:-

25. In the applicant's circumstances there can be no suggestion of oppressive pre-trial incarceration. There is no allegation of specific prejudice in the case of the applicant nor has he sworn any affidavit in this respect or otherwise. However, it is clear from DPP v Byrne that inordinate delay in itself can be prejudicial and can give rise to the necessity for a Court to protect the constitutional right of the accused by prohibiting a trial even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk that the accused's capacity to defend himself would be impaired. The applicant is charged with an indictable offence and so there is no six month time limit. Counsel for the respondent has submitted that there is no case in which the High Court has said that a delay of twelve months with regard to an indictable offence is enough to warrant a prohibition. It is significant that in the applicant's case the lapse of time has been less than twelve months; for a seven month period directions were awaited from the office of the DPP. No complaint about delay was made in the District Court on 27th July, 1984 nor was any application made to cross-examine the Garda with regard to whether the DPP sought further information from him during the seven month period. Finally, whereas the charge in DPP v Byrne was under the Road Traffic Act and would require recollection with regard to technical proofs, there would appear to be little unusual about the count with regard to handling stolen property. Besides, the applicant was aware of the prospective charge within days of the alleged offence and could then have dredged his memory with regard to his transactions at that time. Counsel for the respondent pointed to the fact that in Cahalane v Judge Murphy and The DPP [1994] 2 IR 262 the situation was that the evidence was available three years before a charge was brought and nearly seven years elapsed between the date of the offence and the trial in the Circuit Court. Furthermore, a crucial witness had died in the meantime.

26. The applicant has failed to satisfy me that in the circumstaces there has been any breach of his right to a trial with reasonable expedition. I am not satisfied that there are any grounds warranting this Court's intervention by way of prohibition. In cases of delay if the lapse of time is a long one, then it may be inferred that a fair trial is no longer possible. I refute the suggestion that the time lag of some seven months in this case is such that it would be legitimate for the Court to infer unfairness without proof of any specific prejudice. Taking into account the comparatively short length of the delay, the reason for the delay in that directions from the DPP were being awaited, the lack of any complaint by the applicant in respect of the delay and the lack of any evidence of prejudice being caused to the defendant, it seems to me that the applicant fails in his quest for prohibition on grounds of delay.

27. For all the reasons given, the application for prohibition should be dismissed.

28. DPP -v- Terence O'Toole & James Hickey CCA Unrep., 20th July 1990, Hederman J.

29. Re Joseph et al. -v- Minister of National Revenue, 20 DLR (4th) 577

30. The People (DPP) -v- John O'Loughlin [1979] IR 85

31. Keating -v- The Governor of Mountjoy Prison [1991] 1 IR 61

32. State (McCormack) -v- Curran & Ors [1987] ILRM 225

33. O'Flynn -v- District Justice Clifford & Ors [1988] IR 740

34. Gibbs -v- The President of the Dublin Circuit Criminal Court and the DPP, H.C., Unrep., 16th May 1996, Kelly J.

35. Cahalane -v- Judge Murphy and The DPP [1994] 2 IR 262