1. In
these Judicial Review proceedings the Applicant seeks an Order of Prohibition
preventing the Judges of the Special Criminal Court from further dealing with
or attempting to put on trial the Applicant in a prosecution entitled
"The People at the suit of the Director of Public Prosecutions -v- Hugh Smith
McMahon"
together with an Order of Prohibition prohibiting the Director of Public
Prosecutions from further proceeding with the said prosecution. He also seeks
Orders of Certiorari quashing the arrest warrant issued by the Judges of the
Special Criminal Court on the 11th February, 1997 in respect of the Applicant,
quashing the direction of the Director of Public Prosecutions that the
Applicant be brought before the Special Criminal Court and also quashing all
Orders of the Judges of the Special Criminal Court remanding the Applicant in
custody and on bail. Leave to issue the Judicial Review proceedings was
granted to the Applicant by this Court (Flood J.) on the 31st July, 1997; the
Applicant's originating Notice of Motion was returnable on the 13th October,
1997. A Statement of Opposition was filed by the second named Respondent (the
Director of Public Prosecutions) on the 15th December, 1997 and the matter came
on for hearing before this Court on the 10th June, 1998.
2. The
grounds on which the Applicant seeks Judicial Review, as set out in his
originating statement, arise from the ex parte application for a warrant for
his arrest made to the Special Criminal Court on the 11th February, 1997. The
Applicant claims that this warrant was issued on the basis of incorrect
evidence given to the Court by Detective Inspector (now Detective
Superintendent) Peter Maguire and that as a result the warrant is bad, the
prosecution of the Applicant is fundamentally flawed, the first named
Respondent has no jurisdiction to deal with the proceedings, and the
proceedings are in breach of the Applicant's right to a fair trial under the
Constitution. All these claims are strenuously opposed by the Director of
Public Prosecutions in his Statement of Opposition.
3. The
factual background to the Applicant's arrest and charge is to some extent set
out in his own Affidavits. Further details are included in the Affidavits of
Detective Inspector Peter Maguire and other members of the Garda Siochana and a
fuller picture of some aspects emerges from the Book of Evidence which was
served on the Applicant on the 8th March, 1997 and which he exhibits with his
grounding Affidavit. The basic facts are largely agreed, or at any rate
unchallenged, by the parties.
4. At
about 7.55 p.m. on the 22nd March, 1995 a telephone call from an anonymous male
using the code name
SPEAR
was received at the Northern Constabulary Headquarters, Perth Road, Inverness,
Scotland, warning that an explosive device had been placed at Kessock Bridge on
the A9 main road, Inverness, and was timed to go off at 9 p.m. that night. As
was the normal practice of the Northern Constabulary, the telephone call was
tape recorded. The code word
SPEAR
was known to be used by an organisation known as the Scottish National
Liberation Army. As a result the Kessock Bridge was closed for some two hours
with major disruption of traffic. A search of the bridge revealed no explosive
device. The Northern Constabulary preserved the tape recording of the
telephone call and carried out their own investigations.
5. The
Applicant in the present proceedings is a native of Scotland, normally resident
in Glasgow. He came to Ireland in or about 24th January, 1995 and has resided
here since in the general area of Gardiner Street in Dublin. He is unemployed.
He appears to have some acquaintance or association with another Scot, Adam
Stuart Busby, who resides close to the Applicant in Dublin. Mr. Busby
apparently makes no secret of the fact that he is involved in the Scottish
National Liberation Army.
6. During
the early months of 1995 the Applicant and Mr. Busby were being kept under
observation by the Gardai, who apparently were investigating matters connected
with the Scottish National Liberation Army. On 22nd March, 1995 Detective
Garda Brendan Moffat and Detective Garda Frank O'Sullivan observed the
Applicant and Mr. Busby entering a public telephone kiosk at Summerhill Parade,
Dublin, at 7.53 p.m. Mr. Busby dialled a number and the Applicant spoke into
the telephone. The call ended at approximately 7.57 p.m. The two men remained
in the telephone kiosk for several minutes and then left.
7. Presumably
as a result of their own investigations, the Scottish police informed the Garda
Siochana about the details of the bomb warning call which had taken place on
the 22nd March, 1995, and on 19th May, 1995 Detective Inspector Peter Maguire
went to Pitt Street Police Station, Glasgow, where he listened to a tape of the
telephone call and requested a copy of it. The copy tape was delivered to
Detective Inspector Maguire in Dublin on the 6th June, 1995.
8. Meanwhile
on 3rd June, 1995 the Applicant was arrested under Section 30 of the Offences
Against the State Act, 1939 and held for questioning in Fitzgibbon Street Garda
Station. He was interviewed by a number of Gardai and was questioned about his
own and Mr. Busby's connections with the Scottish National Liberation Army. He
was also questioned about the telephone call made to Inverness on the 22nd
March, 1995. He admitted that he was acquainted with Mr. Busby, but at all
times denied that he himself had any connection with the SNLA or with the
telephone call made to the police at Inverness. He was released without charge.
9. When
the relevant members of the Garda Siochana listened to the tape which Detective
Inspector Maguire had obtained from the Scottish Police, they apparently formed
the view that the voice on the tape was that of the Applicant. However, no
further action was taken until 20th May, 1996 when Detective Inspector Maguire
gave the tape to Detective Sergeant Nicholas McGrath and directed him to meet
the Applicant on an informal occasion and play the tape to him. On 12th June,
1996 the Applicant was in the public gallery of the Special Criminal Court in
Green Street. Detective Sergeant McGrath asked him to come outside for a few
minutes, which he did. The Applicant was cautioned in the normal way.
Detective Sergeant McGrath, who was accompanied by a number of other Gardai,
played the tape recording to the Applicant on the steps of Green Street
Courthouse. The Gardai in their Affidavits aver that he admitted that the
voice on the tape recording was his, invited them to charge him, and then went
back into the Courthouse. The Garda account of this incident is not
substantially challenged by the Applicant in his Affidavits, although he does
not admit to the words alleged to have been used by him on that occasion.
10. On
the 11th February, 1997, some eight months later, an ex parte application was
made to the Special Criminal Court by Mr. Patrick Geraghty of the Chief State
Solicitor's Office on behalf of the Director of Public Prosecutions for a
warrant to arrest the Applicant on a charge that on 22nd March, 1995 within the
State he did send by means of a telecommunication system operated by Bord
Telecom Eireann a message which was of a menacing character, contrary to
Section 13(1) of the Post Office (Amendment) Act, 1951, as inserted by Section
8 of the Fourth Schedule to the Postal and Telecommunication Services Act,
1983. This being a non-scheduled offence, a certificate from the Director of
Public Prosecutions pursuant to Section 47(2) of the Offences Against the State
Act, 1939 was handed in to the Court certifying that in the opinion of the DPP
the ordinary Courts were inadequate to secure the effective administration of
justice and the preservation of public peace and order in relation to the trial
of the Applicant. Mr. Geraghty stated that he was applying for a Form 6
warrant under the terms of Rule 17 of the Special Criminal Court Rules (S.I.
234 of 1975). Detective Inspector Peter Maguire gave evidence of the telephone
call to the Scottish Police and of the subsequent investigations. During the
course of his evidence (as reproduced in the transcript of the hearing)
Detective Inspector Maguire said that the Applicant had been arrested by the
Garda Siochana under Section 30 of the Offences Against the State Act in
pursuance of another investigation. He went on to say:-
11. It
appears that no mention was made of the scene outside the Special Criminal
Court in Green Street.
12. The
warrant was issued by the Court and the Applicant was arrested and brought
before the Court on the 14th February, 1997 and charged. He was remanded in
custody until 5th March, 1997. On that date bail terms were fixed and the
Applicant was released on bail. He remains on bail and the proceedings before
the Special Criminal Court have been stayed pending the outcome of these
proceedings. On the 8th March, 1997 he was served with a Book of Evidence. On
the 6th May, 1997 the Special Criminal Court ordered that the Applicant be
furnished with a transcript of the ex parte application for a warrant. This
was delivered to him on the 28th May, 1997 and in June 1997 he was given audio
tapes of his interviews in Fitzgibbon Street Garda Station.
13. In
his Affidavits Detective Inspector Maguire at first suggested that the
transcript might have been incomplete as his memory was that he had in fact
mentioned in evidence that the tape was played to the Applicant outside the
Special Criminal Court. However, in a later Affidavit, on the evidence of the
re-checked transcript, Detective Inspector Maguire avers that it was highly
improbable that he would have made an error as to the location where the
Applicant's admission was made. However, he could not state with certainty
that such an error could not have been made by him. If so, it would have been
a slip of the tongue and certainly did not constitute an attempt on his part to
mislead the Judges of the Special Criminal Court in any way.
14. The
submissions of Counsel for the Applicant fell under two main headings.
Firstly, he submitted that the whole episode at the Special Criminal Court on
the 12th June, 1996, when the tape recording was played to the Applicant, was
highly irregular and that any admission obtained from the Applicant under these
circumstances would not be properly admissible as evidence against him in any
trial. He had not been arrested and brought for questioning to a Garda Station
and no formal statement had been taken from him. The fact that he was
cautioned prior to the playing of the tape did not save the situation from its
irregularity; it was quite improper for the Gardai to behave in this fashion.
Had evidence of this episode been properly given before the Special Criminal
Court as being the main evidence on which the prosecution proposed to rely, it
was unlikely that the warrant would have been issued.
15. Counsel
for the Applicant secondly submitted that the issue of the warrant was based on
untrue evidence given by Detective Inspector Maguire on the 11th February,
1997. The Special Criminal Court was misled into granting the warrant on a
basis that was false. He argued that it was an essential part of fair and
constitutional proceedings that a warrant for the arrest of any person could
only be obtained on true grounds. Since a warrant to arrest gave power to
interfere with the personal liberty of a person, such power could only be
invoked and operated on a basis of truth. All the procedures which had taken
place before the Special Criminal Court to date had been fundamentally flawed
and bad as the original basis for those proceedings, namely, the application
for and grant of the warrant, were bad and made on a false basis. He referred
to the need for strict compliance with the statutory rules and procedures of
the Special Criminal Court and relied on the case of
McElhinney
-v- The
Special
Criminal Court
[1990] 1 IR 405. He also referred to the case of
DPP
-v- Kenny
[1990] 2 IR 110 in regard to the need for the Court to be satisfied on proper
evidence before issuing a warrant.
16. Counsel
for the Director of Public Prosecutions submitted that the real issue before
the Court was whether or not the Applicant was
"lawfully
brought before the Court"
within the meaning of Section 43 of the Offences Against the State Act, 1939
and, more particularly, whether the warrant issued for the arrest of the
Applicant was properly and lawfully issued. He referred to what he described
as the substantial evidence which existed against the Applicant quite apart
from the admission he had made outside Green Street Courthouse in regard to the
tape recording. He submitted that there was no legal necessity to arrest a
suspect and hold him in detention in a Garda Station in order to interview him,
nor that all statements required to be formal statements taken while in
custody. He stated that the uncontroverted fact remained that the admission in
question was a cautioned admission and the fact that it took place otherwise
than while the Applicant was in detention arguably added to its probative value
rather than detracting therefrom. The circumstances in which the Applicant
could seek to challenge the admissibility of the evidence of admission
following the caution being administered were more restricted because the
Applicant was a free agent who had voluntarily come out of the public gallery
of the Courthouse in question and had voluntarily attended at the playing of
the tape. It was apparent that even if this Court were to hold that Detective
Inspector Maguire as a matter of probability had inaccurately recited the
location of the admission, the Special Criminal Court could in no way be said
to have been misled as to the salient facts of the case.
17. Counsel
for the DPP then dealt with the jurisdiction of the Special Criminal Court
under Sections 43 and 47 of the Offences Against the State Act, 1939. He
pointed out that in
McElhinney's
case
the Supreme Court had held that once a person appeared before the Court because
he had been arrested on foot of a warrant issued by the Court, he was a person
"brought
before a special Court"
within
the meaning of Section 47 subsection (3) of the Act of 1939. He could then be
charged not only with the offence for which the warrant had been issued but
also with other offences provided that the Director of Public Prosecutions had
issued the relevant certificate under Section 47(2). He argued that there was
no reference to evidence being needed to found the issue of a warrant in
Section 47 of the Act of 1939. No claim was made by the Applicant that there
was any inadequacy in the direction of the Director of Public Prosecutions or
in the certificate of the Director of Public Prosecutions certifying that the
ordinary Courts were not appropriate for the trial of the charge in question.
Neither was any claim made that the form of the warrant was in appropriate or
insufficient. The fundamentals of the jurisdiction of the Special Criminal
Court depended on the direction of the DPP pursuant to Section 47(1), the
certification of the DPP pursuant to Section 47(2) and the request for a
warrant to comply with the mandatory provisions of Section 47(1). Once those
fundamental jurisdictional facts were established in evidence, the Court was
entitled to issue the warrant and the Applicant was lawfully brought before the
Court. In accordance with settled law on Judicial Review, which is concerned
with the decision-making process rather than with whether the decision reached
was the correct decision, Counsel for the DPP submitted that the only basis
upon which the warrant in the instant case could be quashed would be if this
Court were to determine that there was no basis whatever upon which the Special
Criminal Court could have come to the decision to issue the warrant. The fact
that it was possible that the Judges of the Special Criminal Court were
inadvertently misinformed as to the whereabouts of the Applicant when he
acknowledged his voice on the tape recording could not in any way affect the
jurisdiction of the Court to have issued the warrant in the first place.
18. The
first issue raised by the Applicant is the alleged irregularity or illegality
of the procedure adopted by the Gardai in playing the tape recording to the
Applicant outside Green Street Courthouse on the 12th June, 1996. It seems to
me that the suggestion made by Counsel for the Applicant both in his oral and
in his written submissions that a person must be under arrest and in detention
in a Garda Station before being questioned or interviewed in regard to an
offence is ill-founded. Under the common law, in fact, a person could not be
arrested and held for questioning; if arrested he should be charged and
brought before a Court. The power to arrest and to hold for questioning
without charge is based on statute - e.g. the provisions of Section 30 of the
Offences Against the State Act, 1939, of Section 4 of the Criminal Justice Act,
1984, and of some of the statutes relating to drug offences. All these
statutory powers are strictly controlled both by the statutes themselves and by
statutory rules as to the length of time an arrested person may be held in
custody, the grounds of such an arrest, the conditions under which the arrested
person is held and other safeguards. While, in recent years, the use of these
statutory powers of detention has become more and more frequent, it should
never be forgotten that the voluntary interview is in fact the norm under the
common law, and that a very large part of the detection work of the Gardai must
and should depend on voluntary interviews and on information gained from
statements made during such interviews. Persons making statements to the
Gardai in the course of such interviews should, of course, be cautioned as is
laid down in the Judges' Rules. In the instant case the Applicant voluntarily
left the Courthouse and voluntarily listened to the tape recording. He was
under no obligation to make any admission. There is no suggestion that he was
threatened or offered any inducement. The method adopted by the Gardai may
have been somewhat unusual in these times when there is perhaps an
over-reliance on statutory powers of detention and questioning, but it does not
appear to me to have any taint of illegality. Nor does it in any way affect
the validity of the warrant issued by the Special Criminal Court. If the
Applicant wishes to challenge the admissibility of the evidence of his alleged
admission to the Gardai, the time for such a challenge is during his trial.
19. I
now turn to the Applicant's claim that the warrant issued by the Special
Criminal Court is bad and the prosecution fundamentally flawed on account of
the inaccurate evidence given by Detective Inspector Maguire on the occasion of
the ex parte application for the warrant.
20. As
has on previous occasions been pointed out both in this Court and in the
Supreme Court, the jurisdiction of the Special Criminal Court is purely
statutory; the powers and procedures of the Court are governed by statute and
by statutory rules. Counsel for the Applicant is of course correct in
submitting that, as was stated by the learned Walsh J. in his judgment in the
Supreme Court in
McElhinney
-v- Special Criminal Court
(at page 420) that:-
22. It
was under this statutory procedure that the warrant for the arrest of the
Applicant was issued and that he was arrested and brought before the Court.
The Applicant does not in any way challenge the technical aspects of the
application for the warrant; the Director properly issued his certificate
pursuant to Section 47(2) and the certificate was duly handed into the Court on
his behalf. There is no challenge to the form of the warrant which accurately
follows form 6 of the 1975 rules. It is perhaps significant that no mention
need be made of the laying of information or the giving of evidence in the
recitals on the face of the warrant. The Applicant, however, claims that the
warrant and all procedures stemming from it are fundamentally flawed on account
of the inaccurate evidence given by Detective Inspector Maguire. He claims that
he cannot have a fair trial in accordance with law as guaranteed by Article 38
of the Constitution.
23. It
is, of course, true, as submitted by Counsel for the Applicant, that a warrant
to arrest gives power to interfere with the personal liberty of a person, but
it seems doubtful that one can go so far as to state, as he does, that such a
power can only be invoked or operated on a basis of truth, or that the arrest
of any person can only be lawfully obtained on true grounds. The truth or
otherwise of the grounds of the arrest and of the evidence of the Garda and
other witnesses eventually fall to be tested at the trial of the arrested
person. What is required at the stage of the application for a warrant is that
the prosecution has a bona fide belief based on information that the person to
be arrested is guilty as charged. The sufficiency of the information and the
bona fides of the witnesses will, of course, have been considered by the DPP
before the ex parte application under Section 47 is made.
24. Counsel
for the Applicant in this connection referred to the case of
DPP
-v- Kenny
[1990] 2 IR 110. In that case it was held by the Court of Criminal Appeal that
a search warrant was invalid because there was no evidence that the Peace
Commissioner who issued the warrant had made any enquiry as to the basis of the
Garda's suspicion. Accordingly, he had failed to exercise his judicial
discretion and had failed to carry out his function under the Act.
Accordingly, it was claimed in that case that the entry to the appellant's home
on foot of the invalid search warrant was a deliberate and conscious violation
of the constitutional rights of a citizen and that evidence obtained as a
result of such violation was inadmissible. The Supreme Court held that
evidence obtained as a result of a deliberate and conscious violation of
constitutional rights of a citizen must be excluded unless the Court in its
discretion was satisfied that there were extraordinary excusing circumstances
which justified the admission of the evidence or that the act constituting the
breach of constitutional rights was committed unintentionally or accidentally.
25. In
considering the decision of the Court of Criminal Appeal in regard to the
warrant in
Kenny's
case, it must be borne in mind that in that case also the Court was dealing
with a statutory jurisdiction - that of the Misuse of Drugs Act, 1977. Section
26 of that Act, as amended by Section 13 of the Misuse of Drugs Act, 1984,
provides inter alia:-
26. It
is from this statutory provision that the requirement that the Peace
Commissioner be
"satisfied"
derives, and the actual warrant states inter alia
"whereas I, the undersigned Peace Commissioner, being satisfied on the
information on oath of Garda ..... ".
27. This
is an entirely different situation from that in the instant case where the
jurisdiction to issue the warrant is that provided under Section 47 of the Act
of 1939.
28. I
have carefully considered both the transcript of the ex parte application for
the issue of the warrant and the Affidavits of Detective Inspector Peter
Maguire. No notice to cross-examine Detective Inspector Maguire on his
Affidavits was served by the Applicant and no evidence has been offered to
substantiate any allegation that he deliberately and maliciously misled the
Special Criminal Court. I accept on the evidence of the transcript that he did
not fully or accurately describe the location of the Applicant's alleged
admission. I also accept that this was due to inadvertence and not to any
deliberate or conscious effort to interfere with the Applicant's right to a
fair trial. Leaving aside the evidence of the admission, the Judges of the
Special Criminal Court had before them a number of substantial pieces of
evidence on which it was open to them to issue the warrant. In these
circumstances I consider that it would be improper for this Court to interfere
by way of Judicial Review with the operation of the jurisdiction of the Special
Criminal Court.