High Court of Ireland Decisions

1. By Order of the 31st of May 2000 Mr. Justice Lavan gave leave to the Applicant to apply by way of an application for Judicial Review for

2. The grounds upon which such relief is sought are as follows:-

3. The Statement grounding the Application for Judicial Review was verified by an Affidavit for and on behalf of the Applicant by Diarmuid O'Shea, Solicitor and filed 31st day of May 2000. In his Affidavit Mr. O'Shea deposes as follows:-

4. Thereafter on the morning of 19th November 1999 the Applicant was conveyed from Bandon Garda Station to Macroom District Court where he was charged before District Judge O'Connor along with two other persons namely one Barry Court and Matthew Paul Simpkins. All of them were charged with the same offences. All three were remanded to Bantry District Court on 26th of November 1999.

5. The accused made no reply.

6. A statement of opposition has been filed on behalf of the Director. The grounds upon which the Director opposes the application for Judicial Review can be summarised as amounting to a traverse of the grounds relied upon by the Applicant in his statement on grounding his application for leave for Judicial Review.

7. Mr. Domhnall Murray of the Office of the Director has sworn an Affidavit in which he states that he is a Professional Officer in the Office of the Director and was at all material times the person responsible in the Office for handling the file pertaining to the criminal proceedings against the Applicant set out at Schull Garda Station, Charge Sheet No. 4 of 2000.

8. Mr. Murray says that on Friday the 12th of May, 2000 he spoke to Mr. John Edwards SC, Prosecuting Counsel who raised a number of issues with him concerning the legality of the boarding of the Posidonia. He says that the absence or otherwise of the certificate under Section 11(1) of the Maritime Jurisdiction Act 1959 (hereinafter referred to as the Act of 1959) was not raised in conversation on that occasion. On Monday the 15th of May, 2000 Mr. Murray received a faxed opinion from Counsel in which he alluded to the absence of the certificate issued by the Minister for Foreign Affairs under Section 11(1) of the Act of 1959. On reading this fax Mr. Murray became aware, for the first time, of the existence of a possible difficulty for the prosecution of the Applicant and the consequence of the absence of a certificate under Section 11(1) of the Act of 1959.

9. At 10.50am he received a telephone call from Counsel in which he expressed the view that Section 11(1) of the Act 1959 applied to the circumstances of the prosecution against the Applicant. The Applicant was an "alien" within the meaning of the Aliens Act 1935 and was being prosecuted for an offences alleged to have been committed in Irish territorial waters on board or by means of a ship registered in the United Kingdom. Mr. Murray expressed the view that the position might have been altered under European Community Law. He requested an opportunity to consider the matter further and to raise it with the Director personally. He asked Mr. Edwards to seek time from the Court for the purpose of making these enquiries and investigating the matter further.

10. Mr. Murray spoke to the Director and was advised by him to seek to have the trial put back until after lunch on that day and that in order to allow him to investigate the matter further and to make enquiries of officials in other governments departments who would be aware of the up-to-date position. Mr. Murray states that at about 11.30am Mr. Edwards contacted him again by telephone to obtain further instructions. He informed him that the Director had requested that he investigate the matter further. He therefore asked Mr. Edwards to seek a further adjournment of the trial until after lunch.

11. Mr. Murray states that at various times during the morning and early afternoon of the 15th May 2000 he attempted to contact, made contact with and received telephone calls from officials at the Department of Justice, Equality and Law Reform, the Department of Foreign Affairs and the Office of the Attorney General. He states the purpose of these enquiries was principally to determine

12. He states that in each case he set out the factual circumstances in which his queries arose before dealing with each of these questions.

13. Mr. Murray says that he learned from Mr. Michael Flahive of the Department of Justice, Equality and Law Reform that Section 11 of the Act of 1959 had not been amended. It was Mr. Flahive's view that it remained in force and continued to apply in all circumstances. This position was confirmed further by officials in the office of the Attorney General. The view of these officials was that the word "alien" in that Act simply referred to anyone who is not a citizen of Ireland.

14. Mr. Murray states that obtaining these advices went on into the afternoon. As the position had not been fully elucidated by 2pm, the Director suggested that Counsel apply to have the trial adjourned until the following morning. This would permit the matter to be conclusively researched and fully considered prior to determining the position the Director would adopt in respect of the matter. Mr. Murray says that about 2pm he received a phone call from Mr. Edwards who was about to go into Court. Mr. Murray told Mr. Edwards that he had not discovered any new elements in the course of his researches to show that the accused were not aliens. He states that he was waiting to hear the views of legal personnel in the Department of Foreign Affairs as they had particular expertise in the area. As he had not as yet had an opportunity to speak with those persons he requested Mr. Edwards to apply to adjourn the trial until the following morning.

15. Mr. Murray states that sometime thereafter he spoke to the relevant personnel in the Department of Foreign Affairs. Mr. James Kingston of the Department informed him that Section 11 of the Act of 1959 was in force and had not been amended in any way by the Aliens Act 1935 or Orders made thereunder. The view expressed to him was to the best of his knowledge that no provision of European Community Law had ordered that position nor did he know of any provision of European Community Law that might assist.

16. At about 3.30pm the State Solicitor Mr. Boohig contacted Mr. Murray by telephone and informed him that Counsel has succeeded in having the matter adjourned until the following morning. Mr. Murray states that after receiving all of these advices it was decided that the absence of a Section 11(1) Certificate would be fatal to the successful prosecution of the Applicant and his co-accused. Consideration then turned to the options open to the Director in those circumstances. After further discussion with the Director it was decided, subject to any views the Senior Counsel might have, to apply to enter a nolle prosequi in respect of the charges against the Applicant and his co-accused. A fresh prosecution would then be commenced against the Applicant and his co-accused. The request would be made of the Minister for Foreign Affairs to issue a Certificate in respect of the Applicant and his co-accused in each case, in the exercise of his powers under Section 11(1) of the Act of 1959. Mr. Murray says that at the time it was decided to adopt this course of action neither he nor the Director had any reason to believe that the Certificates would issue before the proceedings then pending before the Circuit Court in Cork had been concluded and the Applicant had been re-arrested and charged with fresh offences. Mr. Murray says that soon after this decision had been taken he telephoned Mr. Kingston and told him that he had been instructed by the Director to request the Minister to issue three certificates in exercise of his powers under Section 11(1) of the Act of 1959. Mr. Kingston told him that he should prepare a letter setting out the background to this request, enclosing therewith such documentation as he considered necessary to support that application. Mr. Murray then proceeded to prepare that letter and to assemble the necessary documentation in support thereof.

17. At about 5 o'clock Mr. Murray contacted the State Solicitor by telephone and informed him of the decision of the Director and of his contact with Mr. Kingston of the Department of Foreign Affairs. In order to assist Mr. Kingston he asked the State Solicitor to obtain copies of fresh charge sheets and to forward them to Mr. Kingston.

18. At about 6.40pm he delivered the letter requesting the Minister to issue certificates under Section 11(1) of the Act of 1959 in respect of the Applicant and his co-accused together with documentation in support of that request by hand to the Department of Foreign Affairs. On meeting Mr. Kingston he learned that he had not yet received a draft of the fresh charge sheets from the State Solicitor. He immediately telephoned the State Solicitor with a request to send copies of the draft fresh charge sheets to Mr. Kingston at the Department by fax. Mr. Kingston informed Mr. Murray that he wished to draft the certificates and have them and a brief before the Minister at 10am on the following morning. Later that evening he contacted Senior Counsel with his instructions that he was to seek to have a nolle prosequi entered in respect of the charges before the Cork Circuit Criminal Court. He also informed Senior Counsel of the Director's intention to have the Applicant and his co-accused re-arrested and recharged in respect of the same offences.

19. At about 11.15 on the following morning Mr. Kingston telephoned Mr. Murray with a message that the Minister had acceded to the request to issue the certificates and had caused to have the same issued that morning. Mr. Kingston arranged with Mr. Murray that Mr. Murray collect the original certificates from the reception desk at the Department of the Foreign Affairs sometime that afternoon. At about 3pm he personally collected the certificates from the Department. Shortly thereafter he faxed copies of the certificates to the State Solicitor and had them sent to him by courier on the following day.

20. Mr. Murray has denied Mr. O'Shea's assertion that the Director or his Professional Officers were aware of the difficulty for a considerable period prior to the 15th of May 2000. Mr. Murray has indicated that the sole purpose of each of the adjournments sought on the instructions of the Director was to enable him and his Professional Officers to satisfy themselves that Section 11 of the Act of 1959 definitely applied in the circumstances of this prosecution. Accordingly he has denied any ulterior motive to the applications for adjournment. Mr. Murray further denies that either the Director or he at any time made any request of any individual to seek to have the Applicant's trial adjourned or delayed in any way so as to enable the Director to obtain certificates from the Minister pursuant to Section 11(1) of the Act of 1959 prior to the Applicant's re-arrest and charge on fresh offences. Mr. Murray further states that at no time was any instruction given or effort made by either the Director or by himself in order to obtain the certificates prior to the Applicant's re-arrest and charge with the offences on which he is currently awaiting trial. He states that the opinion of the Director is that the Applicant may have been arrested and charged with offences prior to the Minister having issued the certificates. Accordingly he says that no purpose would have been served by obtaining the certificates prior to the Applicant's re-arrest and charge.

21. Mr. Murray reaffirms the fact that no evidence that no improper motive as alleged or otherwise existed for seeking the adjournments. He says that the adjournments and the circumstances in which they were sought and granted do not constitute a violation of the Applicant's constitutional rights.

22. Mr. Murray denies that there was any pretext upon which the adjournments were sought and further denies that the Director was aware well before the jury was empanelled that the absence of a certificate under Section 11(1) of the Act of 1959 was a fatal obstacle to the success of this prosecution.

23. Sergeant John Healy of An Garda Siochana at Bandon in the County of Cork has sworn an Affidavit detailing the background to the arrest of the Applicant and his co-accused in November of 1999 in circumstances where Naval and Customs personnel had boarded the Posidonia six miles south west of Fastnet Rock and that there appeared to be a large quantity of what appeared to be cannabis resin on board. He says that the street value of the cannabis resin found on the boat is approximately £13.8 million. Dealing with the events in May 2000 Sergeant Healy indicates that he was present in Court when Senior Counsel applied for and was granted time to enable the issue of the certificate to be considered in detail by the Office of the Director. He states that the trial was adjourned until after lunch. He was present in Court after lunch when Senior Counsel applied and was granted a further adjournment of the matter to the following morning. On the evening of Monday the 15th of May he was requested by the State Solicitor to prepare fresh charge sheets in the event that the Applicant and his co-accused were to be arrested on the following morning following the entry of a nolle prosequi in respect of the charges laid against the Applicant and his co-accused. He indicates that having prepared the charge sheets he went to the State Solicitor’s Office at Clonakilty, Co. Cork and at 6.45pm that evening they faxed through the charge sheets to Mr. Kingston in the Department of Foreign Affairs.

24. Sergeant Healy says that he was present in Court on the 16th of May 2000 during the entire of the morning’s proceedings including the course of legal argument at the end of which the presiding judge Judge A. G. Murphy acceded to the Director's application to enter nolle prosequi . He states that thereafter the jury was dismissed and the three accused including the Applicant were released from custody by Order of Judge Murphy.

25. Sergeant Healy states that after their release the three accused, together with some off the members of their legal team, went to the cell area under the Courtroom presumably to collect their belongings. He says that in no way could it be construed from anything that was said or done to the three persons that would give rise to any apprehension that they were not at liberty. He states that approximately five minutes later they ascended into the Courtroom. The Court itself had risen. The three men including the Applicant then walked out of the front door of the Courtroom and into the public foyer or hallway. Sergeant Healy states that at between 1.02pm and 1.05pm the Applicant was re-arrested in his presence by Detective Garda Bartholomew O'Leary under Section 4(3) of the Criminal Law Act 1997 for the suspected commission of an arrestable offence contrary to Section 13 of the Misuse of Drugs Act 1977 to 1984, to wit, possession of a controlled drug, cannabis resin, in the territorial waters of the State on November 16th 1999.

26. Sergeant Healy indicates that the Applicant was informed of the reasons for his arrest, brought to Bandon Garda Station where he was charged and later on that same afternoon he and his co-accused were brought to a sitting of the District Court at Clonakilty Co. Cork. Evidence of arrest, charge and caution was given before the District Court. Bail was refused to the Applicant and he has continued on remand in custody since that date and is on remand pending the outcome of these proceedings. Sergeant Healy indicates that it was only on the afternoon of Sunday 14th May, 2000 when he first became aware of the existence of a possible problem concerning the absence of a certificate issued by the Minister for Foreign Affairs under Section 11(1) of the Act of 1959. He confirms that the existence of this possible difficulty was not communicated to officials of the Director until the morning of the 15th May, 2000. He therefore denies the assertion that the Director, his servants or agents were aware of the difficulty for a considerable period prior to 15th May, 2000. He further denies that the purpose for seeking any of the adjournments requested by the Director was to hold the Applicant in unlawful custody as alleged.

27. With regard to the release of the Applicant and his co-accused by Order of Judge Murphy made in the Circuit Court in Cork, Sergeant Healy says that the Applicant and his co-accused were not brought anywhere in the Courtroom or elsewhere in the Courthouse by any member of the Garda Siochána or the Prison Service. He says that the Applicant and his co-accused went, when and where they liked until the arrest in the foyer of the Courthouse. With regard to the Applicant’s passport he says that neither the Applicant nor his legal representatives made any request for the return of any property in Garda custody for the purpose of the investigation at that time.

28. Mr. Malachy Boohig State Solicitor for the County of Cork (West Riding) has sworn an Affidavit in which he refers to the history of the case against the Applicant and his co-accused. He indicates that on Saturday May 13th, 2000 he received a phonecall from Senior Counsel in which Counsel advised him that in the course of dealing with the issue of the legality of the boarding of the vessel it had occurred to Counsel that a potential difficulty might arise owing to the absence of any certificate under Section 11 (1) of the Act of 1959. Senior Counsel indicated that he would fax to the State Solicitor a letter that he had settled that morning setting out his concerns in some detail. Mr. Boohig says that he was unable to contact Mr. Domhnall Murray of the Office of the Director, in order to take instructions. Mr. Murray was the professional officer responsible for the file in the Director’s office. The matter was thus left over until the following morning, Monday 15th May. Mr. Boohig indicates that he engaged in legal research of the matter early in the morning of the 15th May at the Southern Law Association Library at the Courthouse at Camden Quay in Cork. He received a telephone call from Detective Sergeant John Healy of An Garda Siochána. He indicates that at approximately 10.50 a.m., he was in the company of Senior Counsel when he telephoned the Office of the Director and spoke with Mr. Murray. Mr. Boohig confirms the conversation that took place between Senior Counsel and Mr. Murray and which has already been deposed to in the Affidavit of Mr. Murray.

29. Mr. Boohig indicates that the Applicant and his co-accused were arraigned before the Circuit Court at approximately 11 a.m. on 15th May, 2000. By an arrangement between Counsel for the convenience of the jury panel it was agreed that the accused would be arraigned without prejudice to any issue of jurisdiction or to any application that they might wish to make regarding the indictment preferred. He states that this arrangement permitted legal argument to be made without requiring the entire jury panel to be in attendance. The accused were not put in charge of the jury. The presiding judge his Honour Judge Murphy was informed that the prosecution required a short adjournment to take instructions which was granted. Mr. Boohig says that he was present at 11.30 am when Mr. Edwards of Senior Counsel contacted Mr. Murray in the Office of the Director by telephone in order to obtain further instructions. He says that there was a conversation between Mr. Murray and Senior Counsel which lasted for a considerable period of time. Senior Counsel was requested that a further adjournment be sought until after lunch. Thereupon Senior Counsel applied for a further adjournment which was granted until 2.15pm. At approximately 2pm Senior Counsel again contacted Mr. Murray by telephoning in his presence. It was indicated to Senior Counsel by Mr. Murray that he had not come up with any new elements in the course of his researches that would tend to show that the accused were not aliens. However he wished to consult with legal personnel in the Department of Foreign Affairs as they had a particular expertise in the area. As he had not yet had an opportunity to speak with those individuals, Mr. Murray requested that Counsel apply to adjourn the matter until the following morning.

30. Mr. Boohig indicates that Senior Counsel for the Director appeared before Judge Murphy and applied to have the trial adjourned to the following morning. In so-doing Senior Counsel set out in considerable detail the difficulty that the Director found himself in. In that regard this Court has been furnished with the transcript of the entire proceedings before the Circuit Court on that day. Having heard the submissions of Counsel, Judge Murphy adjourned the trial to the following morning. Mr. Boohig confirms the contacts made by Mr. Murray with him late on the afternoon of 15th May, and the particular instructions that he received in relation to the matter. In this regard he confirms what has already been stated on Affidavit by Mr. Murray. Mr. Boohig indicates the involvement that he had with Detective Sergeant Healy on this date also and confirms in this regard what has already been stated on Affidavit by Detective Sergeant Healy. Mr. Boohig also indicates legal research that he himself carried out on this occasion.

31. On Tuesday 16th May, Mr. Kingston in the Department of Foreign Affairs informed Mr. Boohig that draft certificates were before the Minister and at about 11.05 a.m., he telephoned Mr. Boohig to advise him that acting on the Minister’s instructions, he had authenticated the Minister's seal on the certificates. Mr. Boohig further indicates that he attended at Cork Circuit Court at about 10.30a.m., when the matter resumed before his Honour Judge Murphy on Tuesday 16th May. He states that at about 10.30 a.m., Senior Counsel for the Director indicated to the Court that he had received instructions to seek to enter a nolle prosequi without prejudice. Counsel for the Applicant and his co-accused sought as adjournment of the matter to 12 noon to permit them to consider their respective client’s position. Judge Murphy rose until approximately 12 noon when the matter resumed. Counsel for both the prosecution and the accused made lengthy submissions to the Court. After hearing Counsel, the Court ordered that a nolle prosequi be entered in respect of all charges and that the accused be released from custody.

32. The learned Circuit Court Judge made it clear that the accused, including the Applicant, were at liberty and were free to leave the Courtroom. It appears that they left the Courtroom in the company of their legal representatives and went to the cell area of the Courthouse. Here they remained for some minutes before emerging into the hallway outside the Courtroom where they were immediately re-arrested. Having been re-arrested and charged the Applicant and his co-accused were brought before the District Court where they were remanded in custody on that same afternoon.

33. Mr. Boohig indicates that it was not until the afternoon of Saturday 13th May, 2000 that he became aware of the existence of a possible problem surrounding the absence of a certificate issued by the Minister under Section 11(1) of the Act of 1959. He confirms that the existence of this was definitely not communicated to the Director’s office until the morning of Monday 15th May, 2000. Mr. Boohig confirms the evidence of Mr. Murray in relation to the purposes for which the various adjournments were sought. He further joins with Mr. Murray in denying that any ulterior motive was involved in the adjournment applications made to the Court. Mr. Boohig further indicates that from a reading of the transcript, a copy of which has been made available to this Court, it is clear that Counsel instructed on behalf of the Director was at all times candid and truthful in his dealings with both the Court and with Counsel for the Applicant and his co-accused.

34. On behalf of the Applicant it has been submitted that the absence of a Section 11 certificate was fatal to the proceedings then before the Circuit Court on 15th May, 2000. It is pointed out that by reference to a letter from the Office of the Director to Mr. Kingston in the Minister’s office that he was not made aware that the Applicant and his co-accused were in custody. Furthermore, it is submitted that it was clear to Mr. Kingston and therefore to the Minister that when a certificate was requested of him, that there were then proceedings in being before the Circuit Criminal Court in Cork. The Minster and his officials were aware that these proceedings had been instituted without any certificate authorising same. It is submitted by Counsel that the Minister may not issue a certificate under Section 11 of the Act of 1959 while there are proceedings in being. It is submitted that the Minister cannot retrospectively issue a certificate. It is further submitted that the issue in question of the certificate was ultra vires Section 11 (1) itself. It is submitted that it was open to the Minister to wait until after the earlier proceedings had terminated before issuing any certificate.

35. The essential contention made by Counsel on behalf of the Applicant and his co-accused is that the purpose and effect of the adjournment applications was to allow the Director to mend his hand and commence a fresh prosecution with the Applicant in custody and that the conduct of the Director, his servants or agents and the effect thereof on the Applicant amount to a conscious and deliberate violation of the Applicant’s constitutional rights.

36. It is further submitted that the Director and by extension his servants or agents must have known or ought to have known that a certificate was required under Section 11 of the Act of 1959 insofar as the issue had previously arisen in the case of the People (Director of Public Prosecutions) -v- Van Onzen [1996] 2ILRM 387.

37. It was further submitted that while the proceedings were in being that it wasn’t open to the Minister to form an opinion at that time that it was expedient that a certificate be issued by him pursuant to Section 11(1) of the Act of 1959. It was submitted that the import of the letter sent by Mr. Murray to Mr. Kingston in the Department of Foreign Affairs was a request to take him out of a troubled spot. It was submitted that he was being asked to provide a certificate for the purposes of continuing proceedings and not to initiate fresh proceedings. It is further submitted that the three Applicants who were “aliens” for the purposes of the provisions of Section 11 of the Act of 1959 were deprived of an essential procedure before the proceedings were initiated against them. It is submitted that the Minister should have had regard to this failure in dealing with the request for the certificate and should have refused same as the State had already acted in a manner which was detrimental to these three aliens. It is submitted that the Minister when taking the action requested of him was obliged to have regard to the requirements of fair procedures and in this regard should have had regard to the fact that the Applicant and his co-accused had been in custody from the 17th of November 1999 until May of the year 2000. It is submitted that no reasonable Minister for Foreign Affairs could have come to the view that a certificate should issue in these circumstances.

38. With regard to the ignorance of the Director of Public Prosecutions his servants and agents in relation to the law it is pleaded that ignorance of the law is no excuse and in fact the Director and the officers in his office should have been aware of the requirement insofar as the similar case of Van Onzen had come before the Court previously and it must have been known to the Director and in this regard he must have been aware of the requirement for a certificate under the provisions of Section 11(1) of the Act of 1959.

39. With regard to the applications for a remand in custody it is submitted that this is all part of an effort to enable the State to mend its hand. It is submitted that there was no real basis for the adjournments sought before the Circuit Court as everything that needed to be known should have been known from the facts of the earlier Van Onzen case . Counsel for the Applicant has referred this Court to the case of The State (Trimbole) -v- Governor of Mountjoy Prison [1985] ILRM 550 in support of the contention that the Applicant was in this case kept in unlawful detention to facilitate the further charging of the Applicant. It is further submitted by reference to the authority of the People (Director of Public Prosecutions) -v- Kenny [1990] 2 IR 110 that insofar as the Applicant was not released at least by the afternoon of Monday the 15th of May that the actions of the State amounted to a deliberate and conscious violation of the Applicant’s rights. In this regard it is submitted that the detention of the Applicant was conscious and deliberate and it is immaterial whether or not the Director his servants or agents knew that what they were doing was in breach of the constitutional rights of the Applicant. Further reliance is placed by the Applicant on the failure to furnish him with his passport at the stage when he was directed to be released by Order of the Judge of the Circuit Court . It is submitted further that in the instant case there was a concerted plan, firstly to remand the Applicant in custody, secondly to request a certificate of the Minister for Foreign Affairs under Section 11(1) of the Act of 1959 and thirdly to enter an nolle prosequi followed by the immediate arrest of the Applicant and in this regard reliance is placed upon the terms of the letter from Mr. Domhnall Murray to the Department of Foreign Affairs.

40. Finally with regard to the entry of the nolle prosequi it was submitted that the form of the Statute should have been followed, that is the provisions of Section 12 of the Act of 1924. It is further submitted that the appropriate order to have been made by the Circuit Court Judge was to direct the jury to acquit the Applicant of the charges then standing against him in the circumstances of the case. Whether with regard to the entry of the nolle prosequi Counsel on behalf of the Applicant has submitted by reference to the authority of the State (O’Callaghan) -v- ÓhUadhaigh [1977] IR 42 that in the circumstance of the case this Court should prohibit the further trial of the Applicant because of the circumstances in which the nolle prosequi has been entered. In this regard it is submitted that the purpose and/or the effect of the entry of the nolle prosequi in the instance case was to remedy a fundamental evidential defect in the case against the Applicant, namely the absence of a certificate from the Minister for Foreign Affairs under Section 11(1) for the Act of 1959.

41. Counsel for the Applicant and his co-accused adopted the submissions made on their behalf in the Circuit Court and the written submissions furnished to this Court as part of their submissions to this Court.

42. On behalf of the Minister for Foreign Affairs Mr. Eamon Leahy SC submitted that the Minister in this case simply performed the duty authorised by Statute. It is submitted that the certificate issued by the Minister was intended to relate solely to future proceedings and not to any proceedings thein being. It is submitted that at no time was it intended by the Minister or indeed by the Director or any of his servants that the certificate sought of the Minister should relate to the then extant proceedings before the Circuit Court in Cork. It is further submitted that there is no statutory prohibition upon the Minister issuing a certificate in the circumstances of this particular case. With regard to the allegation of a want of fair procedures it is submitted where all are agreed that the Minister intended the certificate to issue to the future that it was immaterial that there was then similar proceedings in being before the Circuit Criminal Court in Cork. It is submitted that the Minister acted upon the request made of him on behalf of the Director and performed a duty which he was entitled by statute, namely Section 11 of the Act of 1959, to perform.

43. On behalf of the Director Mr. Alex Owens S. C. submitted that it was simply as a result of a mistake or inadvertence that the certificate of the Minister for Foreign Affairs was not obtained in the first place. It is submitted that the need for a certificate arises from the relationship between sovereign states and is not something that relates to the rights to the Applicant himself.

44. Mr. Domhnall Murray of the office of the Director of Public Prosecutions became aware only on the Monday morning as a result of a conversation with Senior Counsel about the difficulty in the prosecution case. This arose at a time when the accused, the Applicant in these proceedings was about to be arraigned. The arraignment in question took place without prejudice to the argument as to a jurisdiction that was intended to be made. With regard to the requests for the adjournments these were made to the Court in an open fashion when the Court was appraised of the particular concerns of the prosecution. The initial application for the adjournment from the Monday to the Tuesday was made to the Court to enable the Director to consider fully his position. It is further submitted that if the application for the adjournment had not taken place that the Applicant having raised the issue of jurisdiction would have achieved at best what is described as a ‘Jurisdictional Acquittal’. It is submitted that such an acquittal does not go to the merits of the case when a Court simply renounces jurisdiction. It is submitted that there was in these circumstances be nothing to prevent the accused being arrested immediately following his release and upon his arrest being brought before a court of competent jurisdiction to be charged.

45. It is submitted that the Director is an official charged by Statute with the powers previously vested in the Attorney General to prosecute offences and that the Director would be at fault in not arranging for a fresh arrest and charge of the Applicant. It is submitted that there was in fact no deliberate or conscious violation of the constitutional rights of the Applicant. It is submitted that there was no constitutional right of the Applicant infringed in any way. With regard to the detention of the Applicant and his co-accused overnight it is submitted that it is clear that the Director did not discover the final position in the case until sometime about 5pm on Monday the 15th of May and at that time realised that there was no way around the problem faced by him with regard to the absence of a certificate under Section 11 of the Act of 1959. The Director had a duty to decide what was the appropriate course to take and he decided to enter a nolle prosequi in the circumstances. It is submitted that he had a duty to have the accused re-arrested and charged with these serious offences. The Applicant was remanded overnight by order of the Court. In these circumstances it is submitted that the detention of the Applicant did not amount to a deprivation of his constitutional rights.

46. With regard to the authorities of The State (Trimbole) -v- Governor of Mountjoy Prison and The State (O’Callaghan) -v- ÓhUadhaigh it is submitted that the facts of the instant case bear no relationship to the facts in those cases. It is submitted that no juridical advantage was obtained in the circumstances of this case of the sort contemplated in the O’Callaghan case . It is submitted accordingly that the accused was deprived of nothing in the instant case. The accused was before a Court which did not have the necessary jurisdiction to try him. Insofar as the point being made was a jurisdictional point it was one to be made at the outset. It went to the capacity of the Court to try the case. Insofar as the jurisdiction point was taken at the outset in the instant proceedings after the indictment of the accused and not after the hearing of all the evidence in the case, it was not a circumstance which would have enabled the Court to acquit the Applicant in any event. It is submitted that the issue in the instant case was not an evidential issue. In this regard no similarity exists with the O’Callaghan case . The want of a certificate was not a want of evidence to prove some essential ingredient of the offence charged against the Applicant. On this basis it is submitted that the accused was not deprived of any jurisdictional advantage. The circumstances were such that the Director was obliged to take steps afresh. He decided to enter a nolle prosequi and to request the Minister for Foreign Affairs to issue a certificate. It is submitted that there was nothing unconstitutional in this action of the Director and that the Director was entitled to do what he did do in the instant case.

47. It is submitted further on behalf of the Director that the submission that the learned Circuit Court Judge should have stayed the proceedings or alternatively that he should have put the issue of the guilt or innocence of the accused to the jury with a direction to acquit is a sustainable proposition. Insofar as the Court had no jurisdiction to try the Applicant and his co-accused it flies in the face of that situation to suggest that there was anything to go to the jury in the instant case. Furthermore insofar as the Court had no jurisdiction in the matter it is submitted that the Circuit Court Judge had no jurisdiction to stay the indictment or to refuse the entry of a nolle prosequi in the circumstances. It is submitted that insofar as the Circuit Criminal Court lacked jurisdiction to try the accused it had no option but to discharge the accused. In this regard it is somewhat immaterial whether there was a nolle prosequi entered or otherwise. There was no acquittal of the Applicant in any event. It is submitted that the position in this case where the Director decided to terminate the proceedings was much the same as if the Court of its own motion decided that it had no jurisdiction to hear the case. It is submitted further that in the instant case the trial had not being embarked upon in any sense. No evidence had being adduced. Had circumstances been otherwise the effect may be somewhat different.

48. With regard to the alleged refusal to return the passport to the Applicant it is simply submitted that at the time when the Applicant was directed to be released that no request for his passport was made.

49. In reply to the submissions made on behalf of the Respondents, it was submitted further on behalf of the Applicant and his co-accused that what took place in the instant case amounted to a concerted plan of action between the Director of Public Prosecutions and the Minister, that at the time the Applicant was in unlawful custody and that this unlawful custody was used to devise a particular plan between the Director and the Minister. It is submitted that the Applicant should have been released at the outset. It is submitted that the circumstances giving rise to the fatal flaw in the prosecution was discovered at an early stage and at that stage the Applicant should have been released and the further detention of the Applicant amounted to a deliberate and conscious violation of his constitutional rights. With regard to the expediency in issuing the certificate under Section 11 it is submitted that the expediency referred to in the Section is not something that should be related to the function of the Director but is something that relates to the comity of nations. It is further submitted that insofar as the issuing of the certificate was done in a rushed manner on request made on behalf of the Director by Mr. Murray that the Minister did not have any regard to the comity of nations in issuing the certificate but acted simply to facilitate the Director to overcome the particular difficulties which had arisen. It is submitted that the Minister could not have entered upon proper consideration in the issuing of the certificate in question. It is further submitted that the Minister was drawn into a concerted plan to validate the existing procedures. It was submitted by Counsel that the Minister should have said that he could not consider issuing a certificate under Section 11 while they were proceedings then in being. In other words that he should not have acted until such time as a nolle had been entered or the criminal proceedings against the Applicant had been otherwise terminated.

50. It is conceded in these proceedings by the Director that the proceedings taken against the Applicant and his co-accused are proceedings that relate to an offence alleged to have being committed in the territorial seas on board or by means of a foreign ship and that the Applicant and his co-accused are aliens. In these circumstances it is abundantly clear that Section 11(1) precluded the Director from successfully prosecuting the proceedings then before the Circuit Court on the 15th of May 2000. The absence of a certificate at that time was not something that was capable of being cured such as to enable those proceedings to be continued before the Court. The charges against the Applicant and his co-accused are serious charges and it was appropriate that the Director examine the matter carefully to seek to overcome the defect in the prosecution raised by Senior Counsel acting on his behalf. It is clear that the action taken by the Director was taken in the full knowledge of the Circuit Court Judge who in exercise of his jurisdiction adjourned the proceedings overnight to the 16th of May.

51. I am satisfied on the evidence before me that the Applicant has failed to show that there was any conscious or deliberate violation of his right by the Respondents or either of them or that there was any concerted plan or plot between the Minister and the Director to violate the constitutional rights of the Applicant or his co-accused. I am satisfied that the application for a certificate to the Minister was one which, on the evidence, was dealt with in an appropriate manner by the Minister and no conclusion to the contrary could be reached by this Court. It is also clear that the certificate issued by the Minister could not issue in respect of the then extant proceedings and could only issue in relation to the contemplated proceedings.

52. The Applicant had failed to show on the evidence, having in regard to the conflicts raised in the affidavits, that the Applicant’s contentions should be preferred to those put forward on behalf of the Respondents. Several deponents have sworn affidavits on behalf of the Respondents and none has been cross-examined on his Affidavit.

53. In conclusion this Court concludes that there is no basis upon which the certificate of the Minister should be quashed and in this light the Court is also satisfied that no basis exists for this Court to restrain the Director in the further prosecution of the Applicant on the charges preferred against him on the 16th of May 2000. While it is clear that the Director should have been aware of the requirement for a certificate under Section 11 of the Act of 1959 long before the 15th of May 2000, such that the certificate would have been obtained in a timely fashion by him from the Minister, I am satisfied that notwithstanding this extension of opinion that I must refuse the Applicant and his co-accused the relief which they seek. I am also satisfied that the entry of the nolle prosequi in the Circuit Court was not in any circumstance where the Court could have stayed these fresh proceedings on the proceedings then before the Court and in the absence of jurisdiction to try the Applicant and his co-accused, the Circuit Court Judge had no jurisdiction to allow the matter to go before the jury with any direction. In view of the fact that the Applicant and his co-accused have been in custody now for upwards of one year it is appropriate that the criminal proceedings proceed at this point without any undue delay.