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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Finnegan v. Member in Charge (Santry) [2006] IEHC 79 (8 March 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H79.html
Cite as: [2006] IEHC 79, [2007] 4 IR 62
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Neutral Citation Number: [2006] IEHC 79
THE HIGH COURT
DUBLIN
Record No: 2006 266 SS
JEFFREY FINNEGAN
Applicant
Respondent
MEMBER IN CHARGE (SANTRY)
RULING DELIVERED BY MR. JUSTICE O'NEILL ON WEDNESDAY, 8TH MARCH 2006
This is an inquiry pursuant to Article 40.4 of the Constitution. Earlier today I directed that this inquiry should take place. The facts which are the substrata of this application are as follows and are not, apart from minor respects, in dispute.
The applicant was arrested at 10.55 pm on 5th March this year under Section 30 of Offences Against the State Act 1939. At the end of the 24 hour period of detention as provided for in the Act his period of detention was extended for a further period of 24 hours, and no challenge is made to the lawfulness of that extension.
Towards the latter part of his second period of detention a conference – and I accept Chief Superintendent Maguire's evidence in this regard – took place to review the state of the investigation and a decision was taken to apply to the District Court pursuant to section 30(4) of the Act of 1939 as inserted by section 10 of Offences Against the State Amendment Act of 1998 for a further extension of the detention of the Applicant for up to 24 hours.
In addition to the Applicant in this case a similar decision was taken in respect of another person. Arrangements were made with the District Court and the relevant parties arrived down to the District Court. It appears that the case of the other man was taken first and that took some time. It was then after the conclusion of his case, which was a similar application to that being made in respect of this Applicant, that the application in respect of this Applicant commenced.
It was Chief Superintendent Maguire's evidence that it commenced at 10.35, but I think he may have been slightly mistaken there. The warrant authorising detention which was issued by the District Court subsequently under the signature of the district judge recorded the application commencing at 10.26 pm, and indeed that is the time recorded by Ms. Banbury, the solicitor for the Applicant in this case. It may very well be the difference is explained by the fact that the clock in the court was fast. It is an immaterial difference no matter what way one approaches the case it would not make any difference in any event.
In the course of the application for this Applicant, which appears to have been conducted expeditiously, all of the relevant proofs which are required by section 30(4) were tendered, and this all appears to have been done with considerable expedition. Nevertheless it was not until 11.20 that the District Court made its order and issued a warrant authorising detention. That warrant is of extreme importance to the case and it reads, or the important part of it reads as follows:
"Whereas on the Applicant the application of 7th March 2006 by Superintendent Noel McLoughlin of An Garda Síochana, Coolock, Dublin 5 for a warrant, a warrant authorising the detention of Jeffrey Finnegan of 2 Rathfilly Drive, Finglas, a person who was on 5th day of March 2006 arrested under section 30 of the Offences Against the State Act 1939 and who is at present detained in custody pursuant to the provisions the sub-section three of that section I, a judge of the District Court, am satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously hereby authorise the Rathfilly Drive, Finglas for a further period not exceeding 24 hours, such a period to the commence at the expiry of section 30(3) of the Offence Against the State Act 1939."
That is the end of that part of the order and it is signed by the district judge. Following upon that today, as I have already said, the Applicant sought an inquiry under Article 40.4 and I directed that inquiry.
The issues which arise as affecting the legality of the detention is whether the applicant was entitled to be released at 10.55 at the end of the 48 hour period and whether if he was, did that fact rob the district justice of jurisdiction to issue the warrant for his further detention at 11.20 pm.
The Applicant submitted that section 30(4)(c) makes clear that if the Applicant is not charged or is not directed to be released within the period of detention that he must be released on the expiry of the detention period.
It is submitted that a district judge has no power to extend the time period, it being a statutory time period.
It was further submitted that it did not matter that the Applicant was in court with a judge and lawyers, they could not protect his rights in this case.
It was further submitted that the district judge had no power to detain the Applicant after 10.55 pm, there being no charge against him. He had no power to in effect put him anywhere.
It was further submitted that the commencement of the proceedings within the period of detention was not sufficient as the hearing of the case could have gone on late into the night with perhaps judgment being reserved until the morning and during this period the district judge had no power whatsoever to detain the Applicant. It was further submitted that the periods of detention under section 30 are inextricably linked and if they lapse a further arrest is required which could only be for the purposes of charge or if it was brought within the provisions of section 30 A (1) as is inserted by section 11 of the 1998 Act.
It is further submitted that the jurisdiction to issue the warrant was entirely dependent upon the continuance of the detention period up to the time of the issue of the warrant and that you could not have a disconnection between the issue of the warrant and a period of lawful detention.
The Respondent submitted that that which may be unlawful can be cured, and they rely on the authority of the case of O'Brien v The Director of Public Prosecution 2005, 2 Irish Law Reports Monthly. Here the submission is made that the making of the order at 11.20 rendered lawful the detention continuously from the expiry of the previous period once there was compliance with the requirements of section 30(4) (a), (b) and (c), and in this case it was submitted that there was no case made, indeed it may have been conceded that these provisions were in fact complied with.
It is further submitted that all that was required was that the application be made within time, which it was.
Mr. O'Higgins pointed to the reality of the situation: The application was made in time, the district judge, to whom concerns were expressed about the passage of time, did not seem to think that it mattered as a significant factor.
It was further submitted that the State was obliged to go through all of the proofs in the case of this Applicant even though similar proofs were gone through in a previous case.
It was submitted that section 8(a) of the Criminal Justice Act 1984 as inserted by section 2 of the Criminal Justice Miscellaneous Provisions Act 1997 applies by virtue of section 9 of the Criminal Justice Act 1984, hence it was submitted that the time spent on the application in the district court was not reckonable in the 24 hour period and that as a consequence of that if one takes the time period as starting at 10.26 in effect the period of detention did not expire until 11.49.
It is further submitted by Mr. O'Higgins that the case of Lavole and Carvida Limited v District Justice O'Donnell & Others in which I gave judgment on 3rd March 2005 is to be distinguished because in that particular case there appears to have been an express interconnection between the period of 48 hours provided for there and the period which was in question.
The first issue which arises for decision is whether the period of lawful detention was initial on foot of the Act taken by a Superintendent of An Garda Síochana after the expiry of the first period of 24 hours, ie the second period of detention expired at 10.55 pm last night.
I am satisfied that it did. This is a statutory period of detention and like all statutory periods of detention it cannot be extended by court orders or by anything that the court can do. The only way there can be an extension of a statutory period of detention is by express legislative provision
In the course of the case of Claude Michael Joseph Lavole & Carvida Limited and District Judge John O'Donnell Ireland & Attorney General in which I delivered judgment on 3rd March 2005 I was confronted with a not dissimilar problem where a time period had elapsed during the course of the hearing of District Court proceedings, and I had this to say in relation to it at page 14:
"In reaching that conclusion I have formed the opinion that notwithstanding the commencement of the criminal proceedings, by the giving of evidence of arrest, charge and caution before the expiry of the 48 hour period and having regard to the reasons why the matter was not concluded then, but later in the day, that nonetheless it was not within the power of the district judge or indeed of anyone, either expressly or by implication from their conduct, to extend this statutory time limit.
In my view having regard to the nature of the time period involved it is simply not possible having regard to its statutory nature, to construe the statutory provision in question in the light of the circumstances that prevailed on 7th December regardless of how compelling they may be, so as to permit what would in effect be an extension of that time limit."
Now I have said Mr. O'Higgins sought to distinguish that on the basis of the fact that the periods involved in that particular case has a different relationship to each other. In that particular case what was at issue were powers derived from s. 233 A and S. 234 of the Fisheries Consolidation Act 1959. In the course of my judgment in the case I reached the conclusion that the powers exercised under both of these sections were independent of each other, and hence the power to exercise the provisions of detention under the latter section, 234, could be exercised at a time after the expiration of the time limit in respect of the detention under the previous section.
There is no real comparison between these two statutory schemes, ie detention under section 233A or 234 of the Fishery Consolidation Act 1959 and dention under section 30 of the Act of 1939. Under the Offences Against the Person Act, there is no doubt in my view that the periods of detentions are inextricably connected to each other, where as the periods of detention I was concerned with under s. 233 A and 234 of the Fishery Consolidation Act involved powers which could be exercised independently of each other.
The real point that emerges or at least that is of relevance to this case arising from that judgment is that which I had to say about the extension of statutory time limits simpliciter. In my view it simply cannot be done. I don't think there is anything novel in that proposition. In a variety of different circumstances it has been held many times in these courts that statutory time limits cannot be extended by the courts or indeed by anybody else. As I say what is required there to cure that situation is an express statutory provision.
I am satisfied therefore that the commencement of the proceedings in the absence of an express statutory provision, so providing, could not have prevented the expiry of the period of detention at 10.55 pm yesterday evening.
This brings me to the question of whether or not section 8(a) of the Criminal Justice Act of 1984 applies. Before going into that of course it can be observed that if a provision such as that applied it would indeed have cured the problem in this case because the period of detention would have gone on until 10.49, or thereabouts, comfortably past the time when the actual Order of the Court was made.
For the reasons which I will now go into I am satisfied that section 8(a) of the Criminal Justice Act 1984 does not apply. In approaching whether it does or it does not I must be mindful of the fact that I am dealing with criminal statutes that have to be construed strictly. What that means is that the language of the statute must be given its natural and ordinary meaning but a purposive approach is not appropriate.
Section 8(a) was inserted into the Criminal Justice Act of 1984 by section 2 of the Criminal Justice Miscellaneous Provisions Act of 1997. It is in the following terms, and it reads as follows:
"Section 2 of the Criminal Justice Act 1984 is hereby amended in section 4."
Paragraphs A and B do not matter, the relevant paragraphs are C and D, and it reads as follows: "By the insertion after sub-section 8 of the following section:
"Where a person is detained pursuant to sub-section 2 is taken to a court in connection with an application relating to the lawfulness of his detention, the time during which he is absent from the station for that purpose shall be excluded in reckoning the period of detention permitted by this section."
Then, and this is of significance, in sub-paragraph (d) it goes on to provide as follows:
"By the substitution in sub-section 9 of "sub-sections 6, 8 or 8(a) for "sub-sections 6 or 8."
Section 9 of the Criminal Justice Act of 1984 is in the following terms, it reads as follows:
"Sections 4(8) 5, 6 (2) and 6 (3) shall apply with the necessary modifications in relation to persons in custody under section 30 of the Act of 1939 and to the powers conferred by section 7 of the Criminal Law Act 1976 as they apply to persons detained pursuant to section 4 of this Act."
Of course what is clearly missing from the amendment here is a reference to the inclusion in Section 9 of the provisions of section 4(8)(a). That absence becomes quite crucial when one has regard to the fact that in another part of the Act there is a reference to the inclusion of section 8(a), ie in section 4(9). Sub-section 4(9) of the Act of 1984, is in the
following terms:
"To avoid doubt it is hereby declared that a person who is being detained pursuant to sub-section 2 in connection with an offence shall in no case be held in detention [whether for the investigation of that or any other offence] for longer than 12 hours from the time of his arrest, not including any period which is to be excluded under sub-section 6 or 8 in reckoning the period of detention."
Now what is quite significant in my view is that Sub-section 2(d) of the Criminal Justice Miscellaneous Provisions Act 1997 amends section 4(9) by including an express reference to section 8(a), whereas the provisions of section 8(a) are not included for the purpose of an amendment of Section 9 of that Act. That is a very significant and express omission which this Court cannot ignore and in my view I am compelled to the view that section 8(a) is not imported into Section 9 of the Act of 1984 so as to affect a detention under section 30 of
the Act of 1939.
Thus I am satisfied that both in fact and in law the lawful periods of detentions expired at 10.55 pm yesterday evening.
What effect does this have on the Order made by the district judge? Can it be said, as was urged by Mr. O'Higgins for the Respondent that the illegality of the detention between 10.55 and 11.20 is cured by the subsequent order made at 11.20. Well firstly, in my view, it is not a question of curing the illegality of the detention. From 10.55 onwards, in my view, the Applicant was or ought to have been free to go. The real effect of the ending of lawful detention at 10.55 in my view is that the necessary jurisdictional basis for the granting of the warrant, had gone.
It is necessary prerequisite for the exercise by the District Court of its jurisdiction to grant an extension pursuant to section 30(4)(a) that there is a continuing lawful detention pursuant to section 30(3). If that is not there then the suspect is or ought to be at liberty and cannot in any way be said to be amenable to the jurisdiction of the District Court. That being so the District Court lacked any jurisdiction to make any order in relation to him, and specifically the jurisdiction to extend detention pursuant to section 30(4)(a). Because of this jurisdictional void the illegality of the detention after 10.55 yesterday evening could not be cured by the order of the district court at 11.20 and hence in my view the continuing detention of the Applicant remains unlawful and I must order his release.
END OF RULING
Approved: O'Neill J.