Supreme Court of Ireland Decisions

- 2 -

30

Murray CJ.
Geoghegan J.
Kearns J.

Both Anselm Walshe and Kay Bedford were arrested in Limerick on the evening of 27th September, 1991, under s.30 of the Offences against the State Act, 1939. Anselm Walshe was at the time a plain clothes garda officer stationed in Limerick who had 33 years service in the Garda Síochána. Kay Bedford was a person who was on friendly terms with Garda Walshe, but was not herself a member of the Garda Síochána. Following the arrest, which in the case of Garda Walshe took place at Henry Street Garda Station, and in the case of Ms. Bedford at her home, both were brought to Dublin where they were detained in custody at the Bridewell Garda Station and questioned until they were released on the morning of the 29th September, 1991, after approximately 40 hours detention.

The arrests took place as part of an investigation into a matter of major concern to the garda authorities at the time, namely, the infiltration of the ranks of the gardaí in Limerick by the I.R.A. This had resulted in the leaking of information on garda activities in Limerick from within garda ranks to the I.R.A. Both Garda Walshe and Ms. Bedford were arrested on suspicion of membership of the I.R.A. After questioning in the Bridewell Garda Station in Dublin however both were released without charge. Both the State appellants and Detective Inspector Fennessy, who was the officer appointed by the Garda Commissioner to conduct the inquiry into the possible existence of moles or I.R.A. members or sympathisers within the Garda Síochána in Limerick, now accept that neither Garda Walshe or Ms. Bedford were members of the I.R.A. However, it is contended on behalf of the State appellants that the arrests and subsequent detention of both Garda Walshe and Ms. Bedford were not unlawful as the arresting officer in each case had a bona fide and reasonable suspicion at the time of arrest that each was a member of an illegal organisation, namely the I.R.A.

The legality of the arrests of Garda Walshe and Ms. Bedford was the subject of a ruling in the course of the trial by the trial judge on 20th May, 2003. He ruled that the arrests were unlawful on the grounds that the members of An Garda Síochána who arrested Garda Walshe and Ms. Bedford, being Detective Inspector Fennessy and Sergeant O’Shea respectively, did not have the requisite suspicion for the purposes of s.30 of the 1939 Act. Having regard to the fact that the trial judge so ruled, the only issue to be then considered by the jury in both cases was the quantum of damages and the trial judge directed the jury on that basis. There is no complaint of any sort made about the charge given to the jury by the learned trial judge. During the course of the proceedings and prior to trial, Detective Inspector Fennessy sought his own legal representation separate from the State appellants and engaged his own solicitors and counsel for the trial. While the State appellants have at all times accepted that Detective Inspector Fennessy was entitled to an indemnity for the award of damages and costs made in favour of the plaintiffs, the State appellants did not accept that they had any liability to discharge Detective Inspector Fennessy’s own costs. This issue was the subject of a separate hearing before the trial judge on 12th November, 2003, at which neither plaintiff was involved or represented. Following submissions, the trial judge ordered that the State appellants pay Detective Inspector Fennessy’s costs in both cases. In notices of appeal date 21st May, 2004, the State appellants have appealed the ruling of the trial judge which found the arrests of Garda Walshe and Ms. Bedford to be unlawful, the awards of general damages of and €175,000 and €100,000 in favour of Garda Walshe and Ms. Bedford respectively and the order of the trial judge granting Detective Inspector Fennessy his costs against the State appellants. It is submitted that the trial judge erred in ruling as he did in relation to the arrests and ought to have ruled that the arrests were lawful. It is further submitted that the awards were so excessive and disproportionate having regard to all the circumstances that no jury could reasonably have awarded such damages. It is further submitted that the trial judge erred in awarding Detective Inspector Fennessy his costs against the State appellants and ought to have required Detective Inspector Fennessy to bear his own costs in circumstances where the State appellants were prepared to continue providing representation for Detective Inspector Fennessy at the trial.

Anselm (otherwise ‘Joe’) Walshe was born in 1942 and joined the Garda Síochána in 1965. After various postings, he ended up in Limerick in 1974 and was transferred to the Plain Clothes Division of the Garda Síochána in Limerick in 1976. He was involved in the investigation of serious crime and in due course became a full-time scene of crimes examiner in Limerick. He was also very active in the GAA.

In May 1991, a number of months before his arrest, he was involved in an incident when he fell asleep in a car outside a pub in Newtown Perry. This pub was owned by a man named Conway who was believed to have I.R.A sympathies. Some people drove him home on the night in question then took his car and crashed it. It appears that as a result of this incident, a decision was made to revert Garda Walshe to uniform duties, but no action had been taken on foot of this decision at the time of his arrest in September, 1991.

Because it also arose in the course of his subsequent detention, it is perhaps appropriate also to record that he had a cousin, Sarah Duggan, who was involved in one of the republican movements and whose boyfriend was believed to be a member of the I.R.A. Garda Walshe’s ex-directory telephone number was found in Sarah Duggan’s flat in the course of inquiries undertaken to ascertain the source of the leaks within the Limerick Gardaí ranks. However, it is common case that Garda Walshe had reported this association some considerable time prior to his arrest to his immediate superior, Detective Inspector Gerry O’Sullivan. Garda Walshe gave evidence that he tried to persuade Sarah Duggan not to become involved in any republican activity. His friendship with Kay Bedford arose through another friendship and also because Ms. Bedford lived beside the garda station and had asked him for help with passports and the completion of forms of that nature. They also travelled up and down from Limerick to Nenagh together from time to time. Nenagh is Garda Walshe’s home place and also a place that Kay Bedford used regularly visit .

On the 27th September, 1991, Garda Walshe received word that Superintendent Higgins, who was in charge of the station in Henry Street, wished to see him. However, not long after he arrived he was, much to his surprise, arrested by Detective Inspector Fennessy who informed him that he was arresting him under s.30 of the Offences against the State Act, 1939, on suspicion of membership of an illegal organisation. Garda Walshe stated in evidence that he was shocked and horrified by this turn of events, not only because he had nothing to do with the I.R.A. but because he had an aversion to that organisation and had constantly warned his own sons not to get involved with organisations of that nature. He was led out of the station in full view of his colleagues and felt ashamed and degraded. He was driven to Dublin and noted there were cameras and reporters outside the Bridewell garda station when he arrived. He was given a copy of his rights in the early stages and put in a cell.

In subsequent interviews, he was repeatedly asked for his own views as to why he had been arrested. He was asked did he know a Mr. Michael Edwards, an individual who was also of interest to his questioners. He was also asked about Sarah Duggan and repeated the explanation which he had previously given. He also indicated to his questioners that he knew a family called Gavin who lived in Patrickswell in a known republican location. He wondered if the fact that his car might have been seen there, or the fact he was visiting the Gavins, might have been the reason for his arrest. He repeatedly stated he was not a member of the I.R.A. and had nothing to hide.

On being returned to his cell he was unable to sleep that night and described interviews which followed the next day. The plaintiff accepted, very fairly, that the persons interviewing him had been courteous and professional and he had not been mistreated in any way. He was eventually released without charge at about 10:30am on the morning of 29 September, 1991, and driven back to Limerick.

He further gave evidence that he was suspended and not restored to the force until the 17th October, 1991. He was told to apply for his pay during the time when he was suspended. This was refunded to him. Thereafter he found life very difficult in Limerick because he felt people were pointing him out as an associate of criminals and other undesirables. He was subsequently transferred to Cloughjordan and was stationed there as a uniformed garda. It took him about 12 months to fully recover in a personal and professional way from what had happened. He felt stigmatised by what had occurred and had brought the proceedings to vindicate his name.

Detective Inspector Fennessy was the officer sent down from Dublin to Limerick in March, 1991, who was charged with responsibility for discovering whether or not there was a member, or a number of members, of the I.R.A. within the Garda Síochána in Limerick. It is clear from the evidence that the trigger for making the arrest of Garda Walshe was a direction to that effect given to Detective Inspector Fennessy by Chief Superintendent Byrne, later Commissioner Byrne, at the end of a meeting attended by Detective Inspector Fennessy in Garda Headquarters in Dublin. This was in the context of a plan to arrest on the same day another garda, Garda Kelly, also based in Limerick, who was undoubtedly guilty of passing on information to the I.R.A. and was effectively ‘caught in the act’ on the day in question.

Insofar as the arrest of Garda Walshe was concerned, Detective Inspector Fennessy in the course of his evidence alluded to a number of matters within his knowledge at the time. Firstly, he referred to a search carried out by members of the Garda Síochána of premises occupied by Sarah Duggan, a cousin of Garda Walshe, and the discovery there of Garda Walshe’s telephone number which was a telephone number not normally in the public domain. He also gave evidence of a second matter concerning Garda Walshe’s presence in a public house known as Newtown Perry Public House where the owner was suspected of having an involvement with an unlawful organisation. Garda Walshe’s car had been stolen in strange circumstances after he had been in these premises one night. Thirdly, and more importantly, Detective Inspector Fennessy told the court that he had seen information about Garda Walshe which was contained in a confidential document known as a C77. This document was not prepared by Detective Inspector Fennessy, but by some other member of the Garda Síochána and was forwarded to Garda Headquarters in Dublin prior to the direction by Chief Superintendent Byrne to effect to arrest of the plaintiff. This highly confidential secret intelligence document was the subject of a public interest privilege claim, and while the plaintiff’s legal advisers sought discovery of this document at an earlier stage of the proceedings, the claim of privilege was upheld by Costello J. in the High Court in rulings delivered in April and May, 1994, following his own inspection of that and other documents. Detective Inspector Fennessy told the court that he had a suspicion about Garda Walshe “based on the C77 which was sent to Garda Headquarters” and further told the court that because “very sensitive and secret material and moles in the Garda Síochána were in Limerick, my authorities did see a very, very serious situation and they took the decision.”

In the course of the hearing before this court, Gerard Hogan, senior counsel for the State appellants, clarified the appellants’ position in various respects. Firstly, he stated that he was not relying on the material concerning Sarah Duggan and the Newtown Perry pub to justify the arresting officer’s ‘reasonable suspicion’. Nor was the Patrickswell relationship being relied upon. What was being relied upon was the fact that the information contained in the C77 was known to Detective Inspector Fennessy and was sufficient in itself to ground reasonable suspicion, particularly in circumstances where it had been prepared by some other officer. In addition, the arresting officer was entitled to have regard to the fact that his superiors in Dublin, to whom the C77 had been sent, gave a direction to him to effect the arrest in question. However, Mr. Hogan made the concession that the direction to arrest if and when taken alone would not, in the absence of the information contained in the C77 document, have provided a sufficient basis for the formation of a reasonable suspicion.

Ruling of the Trial Judge as to legality of arrests

Having conducted a careful review of the evidence, the learned trial judge dealt with this issue in the following manner (Day 8 at pp 18-24):-

“In evidence Detective Inspector Fennessy gave three reasons, or three potential grounds of why he might have entertained suspicions. The first instance he referred to was the search by members of the gardaí of the premises then occupied by Sarah Duggan who is a cousin of his, and the discovery there of Mr. Walshe’s telephone number which was a telephone number not normally in the public domain. The second instance concerned his presence in a public house known as Newtown Perry Public House where the owner was suspected of having an involvement with an unlawful organisation. There was a subsequent instance when his car was stolen in strange circumstances. The third reason put forward by the State, and referred to by Detective Inspector Fennessy, was information which Detective Inspector Fennessy said he had seen and which was contained in a confidential document known as a C77.

In evidence, Detective Inspector Fennessy dealt with the first ground, that is the question of Sarah Duggan, and the discovery of his telephone number, Mr. Walshe’s telephone number at the premises. In evidence Mr. Fennessy expressed himself satisfied with the explanation which he had been given by Mr. Walshe in relation to that discovery. He indicated that Mr. Walshe had been quite straight with him and had reported the fact that his cousin had been associating with members of an unlawful organisation and marching in circumstances which gave rise to suspicion. Detective Inspector Fennessy described himself as quite satisfied with the explanation, or indicated he was, and certainly his demeanour made it perfectly clear that he was satisfied in those circumstances. In relation to the question of the incident at Newtown Perry - the public house in Newtown Perry - which has been described in some detail, I am not going to go into it, and in relation to the information which was discovered by Detective Inspector Fennessy in the C77.

It is of considerable importance to bear in mind that Detective Inspector Fennessy was the officer in charge of the investigation in Limerick into the presence of a suspected mole within the Garda Síochána. If he had a suspicion in relation to Mr. Walshe, he certainly did not see fit to require any investigation into Mr. Walshe in any respect, or in any manner.

One thing is clear, and was absolutely crystal clear from the evidence adduced by Detective Inspector Fennessy, and it was something which he constantly repeated. Detective Inspector Fennessy did not arrest Mr. Walshe because he suspected that Mr. Walshe was a member of the I.R.A. He did so because he was instructed to arrest Mr. Walshe by I think then Superintendent, now Commissioner, Patrick Byrne. Detective Inspector Fennessy was at pains to repeat that constantly. And it has to be borne in mind that Detective Inspector Fennessy was the person charged with the responsibility for discovering whether or not there was a member, or a number of members of the I.R.A. within the Garda Síochána in Limerick. Nonetheless, having in fact interviewed Mr. Walshe on one occasion at least, Detective Inspector Fennessy did not feel that it was necessary to investigate Mr. Walshe in any respect.

Having listened carefully to the evidence, I am satisfied that while Detective Inspector Fennessy may have harboured some doubts about Mr. Walshe in the weeks and days leading up to the arrest of Mr. Walshe, and he may have been to some extent on inquiry, he did not harbour a real bona fide suspicion that Mr. Walshe was a member of the I.R.A. on the day when Mr. Walshe was arrested. That was not the reason why he arrested Mr. Walshe. He arrested Mr. Walshe because he was directed by then Chief Superintendent Byrne to do so, and because he was called back from a meeting which he was attending and directed by Chief Superintendent Byrne to arrest Mr. Walshe. And he expressed himself as surprised to be asked to do so. But he indicated that he obeyed what was an order and effected the arrest. It was the state of mind of Superintendent Byrne, or then Chief Superintendent Patrick Byrne, now Commissioner Byrne which gave rise to the arrest the arrest of Mr. Walshe, not that of Detective Inspector Fennessy.

When Detective Inspector Fennessy attended the meeting in Dublin with then Chief Superintendent Byrne, he did not harbour a suspicion which warranted the arrest of Mr. Walshe. And he was the officer in charge of the investigation, which was seeking to discover whether or not there was any member of the Garda Síochána in Limerick who was a member of the I.R.A.. When he attended that meeting he did not harbour a real doubt or a real suspicion of that kind. He received no additional information from Chief Superintendent Byrne which would have altered his state of mind in any way. And he made that perfectly clear. He said he was not investigating Mr. Walshe and he remained clear that he had no intention of investigating Mr. Walshe. How in those circumstances can I find that Detective Inspector Fennessy had a real bona fide suspicion that Mr. Walshe was a member of the I.R.A. on that occasion? An arresting officer is entitled to arrest under s.30 of the Offences against the State Act if he suspects a person has committed an offence, particularly in this instance an offence identified in the Schedule to the Act, but the suspicion which he harbours must be a real suspicion, not a whimsical suspicion. The rights of citizens to their liberty are too important to permit arrests on grounds other than real and justified suspicion.”

“Mr. Hogan in turn very properly and fairly acknowledges that it is the state of mind of the arresting officers which should be considered in order to determine this issue. And in that respect, there isn’t an enormous inconsistency in relation to his position.

I am satisfied according to the balance of probabilities that the arrest of Mr. Walshe by Detective Inspector Fennessy was unconnected with any doubts which he may have had about Mr. Walshe and unconnected with any suspicion, if suspicion it can be called, that he may have entertained, but I do not regard it as a real suspicion in the sense which is contemplated by the Act.

As I have indicated, the onus rests upon the defendants to prove that the arrest of Mr. Walshe on the 27th September, 1991, was valid. I am not satisfied on the evidence and on the balance of probabilities that the defendants have discharged that onus”.

The Law

The object of the Offences against the State Act, 1939, is expressed in its long title to be:-

“… to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State and for that purpose to provide for the punishment of persons guilty of offences against the State, to regulate and control in the public interest the formation of associations, to establish special criminal courts in accordance with Article 38 of the Constitution and provide for the constitution, powers, jurisdiction and procedure of such courts, to repeal certain enactments and to make provision generally in relation to matters connected with the matters aforesaid.”

“(a) The usurpation of the functions of Government;

(b) The obstruction of Government (including attempts by force of arms or other violent means or any other forms of intimidation to prevent the exercise by the President, the members of the Oireachtas, the Judiciary, or the Executive of the State, or the State employees of any of their powers or functions);
(c) Illegal drilling and other military exercise;
(d) The formation or maintenance of any secret society in the army or the police force; (emphasis added)
(e) The administering of unlawful oaths”
It goes without saying that the undermining of a nation’s police force as a result of the infiltration of its ranks or members by unlawful armed organisations is a matter which goes to the very essence of State security.

Section 30(1) of the 1939 Act provides:-

“A member of the Garda Síochána…may without warrant… arrest any person… whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or subsection of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act…”

“It is to be noted that before exercising any of the powers conferred in s.30 the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not then the action taken by virtue of s.30 and purported pursuant to s.30 would be illegal. Furthermore the suspicion must be one which is bona fide held and not unreasonable - see the views of this court in the State (Lynch) v. Cooney [1982] I.R. 337 when dealing with the ‘opinion’ formed by the Minister in question. The ‘suspicion’ of a member of the garda in relation of s.30 is not beyond judicial review as is clearly established by the decision of this court in the State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550.”

I now turn to briefly consider the role in all of this of a direction to arrest given by a superior officer. At the outset, having regard to the concession made by counsel for the appellants that a “direction alone” is insufficient, it is only necessary in this case to determine whether or not such a direction, taken in conjunction with the other material or information which was within the knowledge of the arresting officer, may be seen as sufficient.

I would however see the concession made on behalf of the State appellants about a “direction alone” as somewhat surprising having regard both to the particular facts of this case and having regard also to the decision of the Court of Criminal Appeal in The People (DPP) v. McCaffrey [1986] I.L.R.M. 687.

In that case the arresting officer stated in direct evidence that he arrested the applicant under s.30 of the Offences against the State Act, 1939, on suspicion of having committed a scheduled offence, namely, possession of a firearm with intent to endanger life. On cross-examination he agreed he had no suspicion of his own with regard to the applicant. This statement was elaborated on by him in re-examination when he said in effect that the source of his suspicion was a direction to him from Chief Superintendent McNally, the garda officer in charge of the investigations, to arrest the applicant on suspicion of having committed a crime which had involved firearms and ammunition.

In delivering the judgment of the court, Henchy J. stated (at 688):-

“It is true that he (Sergeant Balfe) agreed under cross-examination that he had no suspicion of his own with regard to the applicant. But that is not the same as saying that he had no suspicion with regard to the applicant. It seems to the court that the effect of Sergeant Balfe’s evidence as a whole was that he arrested the applicant under s.30 on suspicion of having committed a scheduled offence, that he himself was not the author of that suspicion, and that in fact it derived from the direction to arrest which he had got from chief Superintendent McNally. The argument propounded on behalf of the applicant rests on the idea that the effect of the evidence was that while the chief superintendent had the required suspicion, the sergeant had not. In the opinion of the court, that is not a correct interpretation of what the sergeant said. He unambiguously stated that his purported arrest under s.30 of the applicant was on suspicion that a scheduled offence had been committed. The fact that the suspicion derived not from the sergeant’s own mental processes but from the opinion of a superior officer made no difference for the purpose of the validity of the arrest. All that was necessary to show was that at the time of the arrest the sergeant had the required suspicion, however arrived at. The court is satisfied that the evidence given was sufficient to support the ruling of the Special Criminal Court that the requirements for a valid arrest under s.30 had been complied with.

The construction put in s.30 in support of the application involves the requirement that no member of the Garda Síochána may make an arrest under s.30 unless he has personally acquired, by investigation, sufficient information relative to the arrested person to warrant his suspecting that person of an offence to which s.30 applies. It is a corollary of this reasoning that if a number of gardaí involved in the investigation of crime or circumstances of the nature envisaged in s.30 should individually form no suspicions on information personally obtained but collectively pass on all their information to a superior officer who, as a result, forms a suspicion concerning a particular individual, that that superior officer alone would be authorised by s.30 to make the arrest. This conclusion may be qualified to the extent, however, that if such a superior officer designated or instructed any other member of the Garda Síochána to make an arrest under s.30, the Superintendent would have to furnish that member with sufficient of the collected information, whether confidential or otherwise, to ensure that the member would himself then form the suspicion corresponding to that already entertained by his instruction superior officer. Such an interpretation of s.30 would be inconsistent with the declared objective of the Offences against the State Act, 1939, namely, ‘to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State’. This interpretation of the wording of s.30 necessarily follows from the submission that the suspicion upon which an arrest under s.30 is authorised must be personal only to the member of the Garda Síochána by whom the arrest is made. As we find this submission unsound in law and unacceptable, the grounds of appeal which are dependant upon it must fail.”

The role and significance of a direction to arrest given to a subordinate by a superior officer was considered by the House of Lords in McKee v. Chief Constable for Northern Ireland [1984] 1 W.L.R.1. Here a police officer was held entitled to have an honest suspicion merely from the fact of instructions given to him by his superior, since an arresting officer was not bound and indeed might not even be entitled to question those instructions or to ask on what information they were founded. Accordingly since the arresting officer had honestly suspected the respondent of being a terrorist, the arrest was lawful and the Chief Constable’s appeal was therefore allowed. In the course of his speech Lord Roskill stated (at p. 1361):-

“On the true construction of s.11(1) of the Statute, what matters is the state of mind of the arresting officer and of no one else. That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer. The arresting officer is not bound and indeed may well not be entitled to question those instructions, or to ask on what information they are founded.”

“Any constable may arrest without warrant any person whom he suspects of being a terrorist”

“I was told that one Kay Bedford and Anselm Joseph Walshe, the two plaintiffs in this case, were to be arrested the following morning, following the arrest of Dennis Kelly and Margaret Flavin. I was directed that all four prisoners were to be conveyed to the Bridewell garda station in Dublin following their arrest in Limerick, and that to order any person that was travelling with them in the car, or cars, to have no conversation whatsoever with those prisoners.”

“The first-named defendant had a reasonable suspicion that the plaintiff had committed or was about to commit a scheduled offence. Membership of an illegal organisation under the Offences against the State Act, 1939.”

“If the plaintiff was arrested by the first-named defendant, which is denied, … such arrest was executed in the course of the first-named defendant’s duty as a serving member of the Garda Síochána and when carrying out the instructions and directions of a superior officer and while acting on and with their authority.”

“To arrest a policeman, very few policemen have arrested policemen. I don’t take kind to arresting any policeman. I was tasked with the job to arrest a policeman, Dennis Kelly, an IRA mole in the Garda Síochána. Anselm Walshe was not my task in Limerick but because of the suspicions … and they were suspicions … that very sensitive and secret material and moles in the Garda Síochána were in Limerick my authorities did see a very very serious situation and they took the decision.”

Nobody would arrest a policeman unless you were ordered or you discussed it with your authorities. I don’t go out and put my hand on a policeman tomorrow morning. If I catch him committing a crime, certainly I arrest him. If I catch him doing a robbery I will arrest him. But in relation to the Offences against the State Act, I agree with Anselm Walshe. It is the most devastating thing to be arrested for. He is a policeman. His father was a policeman. I come from a third generation of police. I can fully understand that that man wanted questions asked. I want questions asked. I am twelve years waiting for this court case to be taken. It is only for I file my own defence in this case. I am the first-named defendant and this case was not done by the State to this court (by which he apparently meant it was not brought by the State to this court).”

“They knew I had suspicion but they are leaving out the authority. They are leaving out that I was ordered to do so. My main (grievance) with the State was that I have asked for the last twelve years what is the position with this case? What have you done to me?”

“It is to be noted that before exercising any of the powers conferred in s. 30 the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not then the action taken by virtue of s. 30 and purported pursuant to s. 30 would be illegal. Furthermore the suspicion must be one which is bona fide held and not unreasonable – see views of this Court in The State (Lynch) v. Cooney [1982] I.R. 337 when dealing with the “opinion” formed by the Minister in question. The “suspicion” of a member of the garda in relation to s. 30 is not beyond judicial review as is clearly established by the decision of this Court in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550.”