JUDGMENT of Mr. Justice Fennelly delivered the 21st day of December 2010.
1. This is an appeal from an order of the High Court (Birmingham J) refusing the application of the appellant for judicial review by way of certiorari of his conviction in the District Court on a charge of theft, for which he had received a sentence of four months imprisonment suspended. It is fair to say that, apart from this conviction, the appellant had an unblemished record.
2. The appellant grounds his application for judicial review and now his appeal on two central complaints:
3. He was rearrested as was permitted by section 10(2) of the Criminal Justice Act, 1984 but was not charged “forthwith” as required by that provision: hence the District Court did not have jurisdiction to try him;
4. His trial was not fair, because the prosecution had not made available to him the CCTV footage for the entire of the time relevant to the charge of theft made against him.
The facts
5. The appellant was employed as a cashier at a leisure centre or amusement arcade in Cork in 2005. His employer suspected theft as a result of what he believed to be a shortfall in takings. He reported the matter to the gardaí, who commenced an investigation.
6. In August 2005 an investigating member of An Garda Síochána attended at the premises. In company with the employer, he viewed the CCTV footage pertaining to the night in question. They selected certain extracts which were downloaded and retained by the gardaí for use as evidence in the case. The gardaí did not seize the hard drive of the system. They selected only those parts which were incriminating, insofar as the appellant was concerned. These amounted to some 3 minutes and 36 seconds of footage composed of seven individual clips. These clips showed the appellant in his cashier’s kiosk on three separate occasions taking currency notes from the till and placing these notes in his left trouser pocket.
7. The appellant complains that he was thus unfairly depicted as simply taking money from the till, whereas he advanced an innocent explanation. That was that staff followed a practice whereby from time to time, when the cash float in the till was insufficient to meet a payout to a winning customer, employees would lend to the cash float on a temporary basis or would exchange small denominations for large denomination notes. The staff members would then repay themselves at a later stage.
8. The appellant was arrested on 1st September, 2005. He was taken to Bridewell Garda Station in Cork, where he was detained under the provisions of section 4 of the Criminal Justice Act, 1984 and questioned. He was released without charge after a little over three hours.
9. The Director of Public Prosecutions (DPP) subsequently directed that the appellant be charged with theft. On 27th October, 2005 he was rearrested.
10. Detective Garda Murray made a telephone call to the applicant around mid-day and informed him of the DPP’s direction. It was agreed that the applicant should meet by appointment with Detective Garda Murray for the purpose of being charged with the offence that had been directed. Although there is sharp disagreement about the reason for the choice of meeting place, it is agreed that the garda and the appellant met at about16:30 at Anglesea Street Garda Station in Cork. Following a formal arrest outside Anglesea Street Garda Station, the applicant was brought by Detective Garda Murray to the Bridewell Garda Station, the journey between the two stations taking approximately 10 minutes. On arrival at the latter Garda Station, the applicant was introduced to Garda Michael Kiernan, the member of the station party, who was, at the time, performing the role of member in charge.
11. The appellant was not formally charged immediately, but was placed in a holding cell for a period of fifty-five minutes approximately, being the period between 16.50 hours and 17.45 hours. The reason for this delay was that the printer which generated the charge sheets was out of order. Detective Garda Murray had to return to Anglesea Street to have them printed. The effect of this was to prolong by about twenty five minutes the period before the appellant was charged.
12. The applicant was then charged with two offences of theft on 21st August 2005 contrary to the Criminal Justice (Theft and Fraud Offences) Act, 2001. One of these was later dropped and is not relevant. The appellant was released on station bail to appear before Cork District Court on the 23rd November, 2005.
13. Detective Garda Murray explained in his affidavit that it is normal practice, when a person is re-arrested for the purpose of being charged, that he or she is placed in a cell while the charge sheets are being printed. He said: “Prisoners in custody are not allowed to roam freely around the Station.” Birmingham J rightly deprecated any practice whereby persons should be placed in a cell as a matter of routine or as a matter of administrative convenience.
14. From the appellant’s first appearance in the District Court on 23rd November 2005, the appellant, through his solicitors, objected to the jurisdiction of the court on the ground that he had not been lawfully charged and detained on 27th October: he had not, he said, been charged “forthwith” as required by section 10(2) of the Criminal Justice Act, 1984, his detention was unlawful and it followed that the court did not have jurisdiction to try him. He made written submissions on this point, which were considered by District Judge MacGruairc. The District Judge delivered a written judgment on 11th January 2006. He rejected the objection to jurisdiction on the basis that the matter should be considered as part of the trial of the appellant.
15. When the matter again came before the court on 10th February 2006, the DPP communicated his consent to summary trial pursuant to section 53(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The judge put the appellant to his election pursuant to section 53(1)(b) and he elected to be tried summarily. Thus, the prosecution, the appellant and the court accepted that the matter was one appropriate for summary trial. At the same hearing, one of the counts (alleging a general deficiency) was struck out on the application of the prosecution and the remaining charge was amended to refer only to theft of a “sum of money” rather than to €700. Finally, the District Judge, on the application of the solicitor for the appellant made a “Gary Doyle” order (see DPP v Doyle [1994] 2 I.R. 286) requiring the prosecution to furnish details of the evidence upon which it was intended to rely including witness statements and CCTV recordings.
16. The matter was adjourned to be heard on 2nd May 2006.
17. There ensued correspondence initiated by the appellant’s solicitor on 20th February 2006, regarding the CCTV recordings. The State Solicitor referred the solicitor to the gardaí, who replied, following a reminder, on 29th March. The solicitor was given witness statements and black and white copies, said to be of poor quality, of stills taken from the CCTV recordings which had been downloaded. The solicitor persisted with his demand for a copy of the actual CCTV footage. On 4th April, he was furnished with short extracts from the CCTV footage. In a telephone conversation on 10th April, Detective Garda Murray informed the solicitor that the CCTV footage upon which the prosecution would rely was not a continuous uninterrupted recording but rather was what was taken from the computer hard drive.
18. In fact, the hard drive of the computer was designed to store 2 to 3 months of continuous recording. Thus, the full record covering 21st August 2005 had been overwritten and was no longer available. This and further technical information was furnished to the solicitor in a telephone conversation on 1st May, the day before the hearing.
19. The respondent commenced the hearing of the case on 2nd May. It continued on that day and on 8th, 10th and 11th May.
20. Inspector Cummins presented the case for the prosecution. He indicated from the outset that he would be relying exclusively on the evidence from the CCTV footage. The appellant’s solicitor conveyed his intention to object to the admission of the CCTV footage into evidence. He maintained this objection consistently throughout the trial. The prosecution proposed to have this footage played in court. The defence objection was that this footage represented clips taken from the hard drive and did not contain a continuous record of the three-hour shift worked by the appellant. The defence solicitor said that the gardaí should have taken possession of the original complete unedited footage. The court was referred to a number of the decisions of this court concerning missing or lost evidence, in particular Braddish v Director of Public Prosecutions [2001] 3 IR 127; Dunne v Director of Public Prosecutions [202] 2 I.R. 305; McFarlane Director of Public Prosecutions [2007] 1 IR 134. The District Judge conducted a voir dire on 8th May concerning the admissibility of the evidence. Having heard further argument, the District Judge held that the defence had not been prejudiced by the failure of the gardaí to take the entire hard drive into garda custody and to furnish the defence with a copy of the complete and unedited footage.
21. Having made this ruling the judge indicated his intention to adjourn the hearing to 10th May for the purpose of viewing the CCTV footage. At that point the appellant’s solicitor informed the judge that he expected to be instructed to seek judicial review of his decision to admit the evidence, called “direction” in the affidavit.
22. On the morning of 10th May, the solicitor applied to the judge to stop the trial so as to facilitate an application to be made to the High Court for judicial review of that decision. The judge declined to stop the trial in the absence of an order of prohibition. He also declined to adjourn the trial for the same purpose.
23. The CCTV footage was played in court. It was effectively the only evidence incriminating the appellant. The appellant called as a witness a fellow employee at the leisure centre to give evidence of the practice of paying funds into the till as a float and later withdrawing it. The appellant did not give evidence. The District Judge convicted the appellant of the offence charged on 11th May 2006.
Proceedings
24. The appellant obtained an order of the High Court (Peart J) on 15th January 2007 granting him leave to apply for judicial review by way of certiorari of his conviction. The grounds may be summarised as follows:
1. The appellant was not charged forthwith following his second arrest on 27th October 2005 with the offence of which he was convicted, as required, in the circumstances of his case, by section 10(2) of the Criminal Justice Act, 1984; hence his constitutional and convention rights to liberty and to a fair trial were infringed; this rendered the charge defective and invalid and the respondent acted ultra vires his jurisdiction, whereas he should have discharged the appellant;
2. The appellant’s right to a fair trial was infringed by the failure of the gardaí to seek out, preserve and make available to him the originals and/or copies of all CCTV footage pertaining to his case; further the respondent contravened the appellant’s right to natural and constitutional justice by proceeding to hear the charge against the appellant and to admit the evidence of CCTV footage in the absence of the complete and unedited CCTV footage being taken into garda custody.
25. With regard to the first point, Birmingham J pointed out that section 10(2) of the Criminal Justice Act, 1984 permits the arrest of a person who has already been detained pursuant to section 4 of that Act and released without charge provided that the arrest is “for the purpose of charging him with that offence forthwith.” (emphasis added). He noted that it was not in dispute that the purpose of the appointment made by Detective Garda Murray with the appellant on 27th October 2005 was that the latter be charged with the offence. He referred to the facts and contrasted them with the facts in the case of O’Brien v Special Criminal Court [2008] 4 IR 514. He noted that the effect of the malfunctioning printer was only to prolong by twenty five minutes the delay in charging the appellant.
26. His principal reason for rejecting the appellant’s first argument was that the fact that he had been detained in a cell for 55 minutes, associated with a delay in charging him did not affect the jurisdiction the District Court to try him. He cited the judgments of Davitt P in State (Attorney General) v Judge Fawsitt [1955] I.R. 39 and of McGuinness J in Director of Public Prosecutions (McTiernan) v Bradley [2000] 1 IR 420.
27. Dealing with the CCTV issue, he accepted that the appellant’s solicitor had moved promptly and with great persistence to obtain the evidence. However, he found the argument for the relevance of the material of which the gardaí did not take possession “somewhat unconvincing and contrived.” He could not see how it could have had the relevance contended for. He though that requiring the retention of footage where no crime is being committed “would be a radical and unwarranted extension of the obligations imposed on the gardaí.”
28. Issues as to the weight of evidence and its admissibility were matters for the court of trial. He concluded that these were not matters which “require or justify intervention of this court by way of judicial review.” Thus he refused relief on both grounds.
The appeal
29. The appellant has placed extremely detailed written submissions before this Court in support of his appeal from the judgment of Birmingham J. The starting point of his argument, on the first point, is necessarily that his arrest on 27th October 2005 was unlawful. The gardaí had already, on 1st September 2005, arrested and detained him, using the powers conferred on them by section 4 of the Act of 1984. They had, however, not charged him arising from that detention but had released him after some three hours. Accordingly, the provisions of section 10(2) of the Criminal Justice Act, 1984 applied to his renewed arrest on 27th October. They place restrictions on the subsequent arrest of the same person on suspicion of the same offence. The section represents a policy protective of the liberty of the citizen. It provided, prior to amendment of sub-section 1 by the Criminal Justice (Amendment) Act, 2009:
(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him, he shall not:
(a) be arrested again for the same offence, or
(2) Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith.
30. The natural and primary point of reference for consideration of the application of section 10(2) is the decision of this Court in O’Brien v Special Criminal Court, already cited, although that case concerned the equivalent provision in the Offences against the State legislation. At the hearing of the appeal Mr Ciarán O’Loughlin, Senior Counsel, on behalf of the appellant relied on that decision as being applicable by analogy to this case.
31. O’Brien concerned the provisions of section 30A of the Offences against the State Act, 1939 and the jurisdiction of the Special Criminal Court.
32. Section 30A was inserted in the Act of 1939 by section 11 of the Offences against the State Act (Amendment) Act, 1998. Section 30A(3) is expressed in virtually identical terms with section 10(2) of the Act of 1984. The former provision applies to a person who has been arrested on an earlier occasion pursuant to section 30 of the Act of 1939 but released without charge, the latter to a prior arrest, detention and release pursuant to section 4 of the Act of 1984. In each case the new arrest which is exceptionally permitted must be effected “forthwith.”
33. The facts in O’Brien were somewhat different. The applicant was arrested on 6th April 2004 on foot of a warrant pursuant to section 29 of the Act of 1939, and detained pursuant to section 30 on suspicion of having committed the offence, contrary to section 21 of the Act, of being a member of an unlawful organisation. His period of detention was extended by a chief superintendent of An Garda Síochána. During that extended period, the Director of Public Prosecutions directed that he be brought before the Special Criminal Court and charged with the membership offence. Since the day was Holy Thursday, arrangements had to be made for a special sitting of that court. Once those arrangements had been made, the officer in charge of the investigation directed that the applicant be released and immediately arrested pursuant to section 4 of the Criminal Law Act, 1997. The applicant was accordingly arrested for charging with the membership offence and taken to a garda station to be detained—and he was so detained— overnight pending his appearance at the Special Criminal Court at noon on the following day. It was envisaged, in these circumstances, that he would be detained for some fifteen hours before being charged.
34. As Denham J noted in her judgment at page 525, the “intention manifest in s. 30A is that a person on a re-arrest in the circumstances of s. 30A may not be detained as if it were a first arrest under s. 30.” In my own judgment, I suggested, at page 534, that the general purpose of the provision was “to prevent abuse by An Garda Síochána by repetitive detention under s. 30 in pursuit of the same investigation.”
35. In O’Brien, it was a clear part of the garda objective that the applicant would be arrested on the Thursday evening, detained overnight in the garda station but not charged until he appeared on the following day at noon before the Special Criminal Court. This Court was unanimously of the view that his arrest was not effected for the purpose of charging him “forthwith.” His arrest and subsequent detention were unlawful. Thus, he was not lawfully brought before the Special Criminal Court on the Friday.
36. In my view, the appellant’s reliance upon O’Brien must fail.
37. The facts are, of course, very different. In O’Brien, it was never intended that the applicant be charged following his re-arrest on the Thursday evening. The Court held that section 4 of the Criminal Law Act, 1997 provided a lawful basis for his arrest. However, section 30A required that, in the circumstances of the earlier arrest and detention, the fresh arrest had to be “for the purpose of charging him……forthwith.” The procedure envisaged was that he be detained overnight in a garda station before being brought before the Special Criminal Court to be charged. Thus, he was not arrested with the intention of charging him “forthwith.”
38. In the present case, the intention was that the garda officer would meet the appellant either at Anglesea Street or Bridewell Garda Station, depending on which version was correct, and be charged that day. It was not envisaged that the charging would take place more than about a half an hour after the arrest. The intervention of the printer problem was unexpected. It was not part of the purpose. The question remains as to whether the purpose of the arrest was that he be charged “forthwith,” given that it was envisaged that there would be a delay of about a half an hour. In other words, it might be argued that the charge sheet should have been printed and ready so that the appellant would be charged immediately on attendance at the garda station. It is not necessary, in this case, to reach a final conclusion on that point, for a reason which I will now explain.
39. Birmingham J held that the District Court did not, in any event, lose jurisdiction by reason of any such delay as was complained of. Apart altogether from the issue of delay in charging, it has to be remembered that O’Brien concerned the procedures for bringing a person before the Special Criminal Court to be charged and tried there. The jurisdiction of that court is dependant on the person charged having been brought before the court pursuant to a lawful procedure. As was emphasised in the judgment of Denham J, section 43 of the Offences against the State Act, 1939 provides:
“A Special Criminal Court shall have jurisdiction to try and to convict to acquit a person lawfully brought before that Court for trial under this Act…” (emphasis added)
40. I drew attention in my own judgment to the well-established proposition that the powers and procedures of the Special Criminal Court were to be interpreted strictly: it exercises a special and exceptional jurisdiction; Article 38 of the Constitution requires that its procedures be laid down by law.
41. The District Court, by contrast, is a court of summary jurisdiction, whose function, envisaged by the Constitution, is the trial of persons charged with minor offences. Birmingham J referred to a well-known dictum of Davitt P in State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 ate 43:
“The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons, but neither of these methods is essential. He could, of course, attend, voluntarily, if he so wished; so far as the exercise of the Court’s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured so long as he is present before the District Justice in Court at the material time. Even if he is brought there by an illegal process, the Court’s jurisdiction is none the less effective.”
42. That statement has been cited and approved in a number of subsequent High Court and Supreme Court decisions. It has come to be accepted as a “settled principle” (see McGuinness J in Director of Public Prosecutions (McTiernan) v. Bradley [2000] 1 IR 420 at 421) that the jurisdiction of the District Court to embark upon the hearing of a criminal charge is not affected by the fact, if it be the fact, that the accused person has been brought before the court by an illegal process. In Director of Public Prosecutions v Michael Delaney [1997] 3 I.R. 453 at 457, O’Flaherty J held that “whether an arrest is illegal or not can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge……” He gave section 49 of the Road Traffic Act, 1961 as an instance of the latter. Keane J reiterated the same proposition in Director of Public Prosecutions (Ivers) v Murphy [1999] 1 IR 98, when he delivered a judgment in this Court to similar effect. He said, at page 113:
“It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the court by an illegal process.”
43. Keane J cited the dictum of Davit P in State (Attorney General) v. Judge Fawsitt, already cited above, and his own judgment in Killeen v Director of Public Prosecutions [1997] 3 I.R. 218. In his judgment in the latter case, he had entered the caveat that “where the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights, of which the most graphic example is The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, the court may be justified in refusing to embark upon the hearing.” No such issue has been raised in the present case.
44. In Director of Public Prosecutions (McTiernan) v. Bradley, McGuinness, then a judge of the High Court, heard a case stated from the District Court. The accused had been arrested without warrant for an assault contrary to section 2(1)(b) of the Non-Fatal Offences against the Person Act, 1997. He came before the District Court for trial on that offence. By the time the matter came before the High Court, it was accepted that there was no power of arrest without warrant for an alleged offence under that section and that section 4 of the Criminal Law Act, 1997 did not confer such a power. McGuinness J, having cited the authorities, which I have already quoted, ruled that the District Judge, in that case, had been correct in entering upon the case before him. The answer given to the question posed in the case stated was that:
“ in cases where proof of a valid arrest was not an essential ingredient to ground a charge, the jurisdiction of the District Court to embark on any criminal proceeding was not affected by the fact that an accused person has been brought before the court by an illegal process, and the court should consider whether there had been a deliberate and conscious violation of the accused's rights, prior to embarking on the hearing.”
45. It follows that, applying these principles to the present case, even if there had been a defect in the way in which the gardaí arrested, detained and charged the appellant, in particular, if there had not been an intention to charge him “forthwith” after his arrest, the jurisdiction of the District Court to try him would not have been affected, in the absence of a deliberate and conscious intention to deprive the appellant of his constitutional rights such as what Keane J described as the “graphic example” of the Trimbole case. Thus, the District Court had jurisdiction to try the appellant.
46. I turn to the ground based on the failure of the gardaí to take possession of the hard drive at the leisure centre or, alternatively, to download the entire sequence of footage covering the period of the appellant’s work shift. Under this heading the appellant complains that the failure of the gardaí to “seek out and preserve the originals and/or copies of all CCTV footage pertaining to these proceedings amounted to a breach of the Garda Síochana’s common law duty to seek out and preserve evidence potentially relevant to the issue of the guilt or innocence of the Applicant.”
47. As I have already recalled, Birmingham J thought that requiring the retention of footage where no crime is being committed “would be a radical and unwarranted extension of the obligations imposed on the gardaí.” There is great force in that remark. There have, at this point, been a large number of these so-called missing-evidence cases. The high point of the appellant’s case is that the facts of this case come within the scope of the authority of Dunne v Director of Public Prosecutions. In that case, there was a video recording covering the scene of the robbery at a filling station, with which the applicant was charged. No copy of the video recording had come into the possession of the gardaí. Hardiman J, delivering the majority judgment of this Court, considered that the gardaí should have taken possession of the video tape. McGuinness J agreed with Hardiman J, but said at page 309:
“Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.”
48. I entered a dissenting judgment.
49. In all of the many missing-evidence that have been decided in the past decade, Dunne stands out as the only case in which it was held that the gardaí were under a duty to “seek out and preserve” a particular piece of evidence. The courts have not laid any general obligation on the prosecuting authorities to seek out and take possession of items of evidence. In the present case, the gardaí did, in fact, take possession, by downloading, of parts of the relevant footage. It is true that they copied only such parts as tended to incriminate the appellant. Detective Garda Murray has sworn an affidavit in these proceedings in which he says:
“I viewed the entirety of the footage pertaining to the night in question and selected in company of the complainant the relevant extracts which I directed should be downloaded and saved for use as evidence in the case. I am quite satisfied that all relevant portions of the footage were saved and that no portion of the footage which could conceivably be considered material to the guilt or innocence of the Applicant was omitted.”
50. He later added that “the remainder of the CCTV footage for the night in question did not provide evidence which tended to exculpate the Applicant,” because the “remainder of the footage which [he] viewed……showed [the appellant] going about his normal work and contained nothing material to the case.”
51. At the time this footage was downloaded, Detective Garda Murray had no reason to foresee that the appellant would advance the explanation now advanced. He was not, of course, under any obligation to disclose the line the defence would take. Nonetheless, it is the fact that, at the time the hard drive was being viewed and extracts being selected, there was no reason to expect that any parts would be relevant to the trial other than those portraying the appellant taking money from the till. The appellant does not disclose, in his affidavit, what evidence was given by Detective Garda Murray on this point in the District Court or what line was taken in cross-examination.
52. Before commenting finally on this issue, it is important to bear in mind the context in which this issue is raised. The appellant invokes the jurisdiction exercised in the line of cases commencing with Braddish and Dunne. In written submissions, he analyses these and a large number of subsequent decisions. His submissions proceed on the assumption that this line of authority is directly applicable to the present case. But those cases and all subsequent such cases involved attempts by accused persons to prevent a pending trial for one or more offences. As Hardiman J expressed the test for the exercise of that jurisdiction, when delivering the judgment of this Court in Scully v Director of Public Prosecutions [2005] 1 IR 242 at 257, it is “first and last, with whether there is a real risk of an unfair trial.” In the present case, the Court is not asked to consider a risk of an unfair pending trial. It is invited to quash a conviction, not to prohibit a trial.
53. I am satisfied that, even applying the traditional test of real or serious risk of an unfair trial, the appellant falls short. The complaint concerning the failure to take possession of or copy the hard drive would involve a significant extension of the obligations of the prosecution authorities. It is at best doubtfully covered by Dunne. Here, as distinct from Dunne, the garda had taken possession of what they considered to be the relevant portions of the CCTV footage. They cannot be blamed for failing to recover material which they had no reason to believe to be of any relevance to the guilt or innocence of the appellant.
54. Finally, in order to justify an order quashing an actual conviction, the appellant would have to satisfy a different standard. It would be necessary to show that the trial was actually unfair to the extent that the respondent District Judge had so departed from proper or fair procedures as to act ultra vires.
55. The evidence shows that the learned District Judge heard the evidence of Detective Murray, who was available for cross-examination and that the appellant called evidence that it was accepted practice that, whenever there was a deficit in the cash float, the cashier on duty would temporarily make up the cash deficit but that he would subsequently repay himself. The hearing of this evidence was all a matter for the trial judge. Whether he admitted the evidence of the CCTV footage and whether he accepted any particular piece of evidence was all a matter within his jurisdiction.
56. The appellant has not referred the Court’s attention to any case in which a conviction was quashed on certiorari by reason of the failure of the prosecution authorities to seek out and retain evidence alleged to be of potential relevance.
57. I would dismiss the appeal and affirm the order of the High Court.
JUDGMENT of Mr. Justice William M. McKechnie dated the 21st day of December 2010
On the 27th October, 2005, Mr. Whelton, the appellant herein, was charged with an offence (as amended) that on the 21st August, 2005, he did steal property, to wit a sum of money, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Having entered a plea of not guilty, he was convicted of that offence on the 11th May, 2006, and subsequently sentenced to four months imprisonment, the entirety of which was conditionally suspended. An appeal to the Cork Circuit Criminal Court against that conviction remains pending. Nothing turns on that appeal in this Court: in fact it would only become relevant if the Court was minded to grant an order of certiorari, in which case its existence would be a material fact in the discretionary nature of that order.
On the 15th January, 2007, the appellant obtained leave from the High Court (Peart J.) to seek an order of certiorari quashing both conviction and sentence. Although the grounds specified in support of the leave application were numerous, they can be distilled into two separate issues. It was alleged that (i) when the appellant was charged, the provisions of s. 10(2) of the Criminal Justice Act 1984 (the “Act of 1984”) were violated; and (ii) the gardaí failed to retrieve or retain and, in any event, to make available, the complete and unedited C.C.T.V. footage of the events and circumstances surrounding this offence. By judgment dated the 19th December, 2007, Birmingham J. rejected both claims. In the notice of appeal to this Court, the appellant seeks additional relief to that originally prayed for. He now looks for a declaration that his detention on the 27th October, 2005, was unlawful and also that any further continuation of the prosecution against him should be prohibited. As such reliefs were neither the subject of the leave order or, indeed, argument in the High Court, I propose to disregard them for the purposes of this appeal. Therefore, the two live issues relate to the s. 10(2) complaint and the C.C.T.V. footage complaint.
I have read the judgment of Fennelly J. on the latter point. I agree with the entirety of his judgment and I have nothing to add. This judgment is, therefore, confined to the first issue which, as I will describe, has two aspects to it.
Save for one area, the facts upon which this appeal proceeds are substantially undisputed. On the 1st September, 2005, the appellant was arrested, without warrant, by a member of An Garda Síochána under s. 4 of the Criminal Law Act 1997, and thereafter was detained under s. 4 of the Act of 1984, on the basis that his detention was necessary for the proper investigation of the above mentioned offence. Without any extension of the detention period, he was later released without charge.
On the 27th October, 2005, he received a phone call at about 12.00 midday from the investigating officer advising that he was to be arrested and charged, inter alia, with the theft offence. By prior arrangement he met Detective Garda Murray outside Anglesea Garda Station in Cork at 16.30 on that day. He was arrested and conveyed to the Bridewell Garda Station. At 16.40 he was detained by the member in charge. At 17.45 he was charged with the relevant offence and was then released, having entered into recognisance to appear at a future specified sitting of the District Court. From arrest to charge the period was, therefore, about one hour and fifteen minutes.
Some controversy exists as to whether the arrest location was agreed to or insisted upon by the appellant or was the choice of the investigating gardaí. This arises because Detective Garda Murray states that he always intended to have the appellant charged at the Bridewell Station as this was the station where he was originally detained. He further says, which is denied, that prior to arrest he informed the appellant of such decision. This conflict, at the factual level, was not solved and, in my view, does not require resolution. The critical events were the arrest and charge which in law are the responsibility of the gardaí. I, therefore, consider the case by reference to the entirety of the period above described.
On arrival at the Bridewell Station, the appellant was processed by the member in charge in accordance with the custody regulations (Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119 of 1987)) and placed in a cell. As it happened, the printer was out of order with the result that recourse to Anglesea Street Station was required so that the appropriate charge sheet could be printed. This necessitated the appellant being detained for a period of approximately twenty five minutes longer than would have been the case but for the malfunction. At all times it is said that the detention of the appellant was solely for the purposes of administratively processing the charge, which exercise was conducted as expeditiously as possible.
Under s. 10(2) of the Act of 1984, a person in the position of the appellant can be rearrested for any offence “for the purpose of charging him with that offence forthwith”. (Para. 14 infra)
It is alleged on behalf of the appellant that, by reference to the timescale above outlined, he was not, following arrest, charged “forthwith” with the theft offence, in accordance with section 10(2). The consequent breach of s. 10(2) not only rendered his detention unlawful, but also deprived the District Court of jurisdiction to try him on the offence upon which he was later convicted. Therefore, that conviction should be set aside.
In his judgment, Birmingham J. refers to the case of O’Brien v. Special Criminal Court & Anor [2008] 4 IR 514 in which, according to the judge, the Supreme Court interpreted the word “forthwith” as imposing a more exact and stringent obligation than would have been the case if words such as “as soon as practicable” had been used. Having distinguished O’Reilly v. The DPP (Ex tempore, Unreported, High Court, O’Neill J., 10th December, 2007), the essence of Birmingham J.’s decision on this point can be found at p. 14 of the judgment, where it is stated:-
“In this case it has been expressly accepted on a number of occasions that the accused was arrested for the purpose of being charged forthwith and while arguably he was not actually charged forthwith he was thereafter charged as soon as practicable.” [Emphasis added]
It is doubtful in my view if there was any evidence to support the inclusion of the word “forthwith” in that finding. The submissions cannot be relied upon in this regard nor do I interpret them as containing such an admission. Rather, I read them as outlining what the subsection asserts should be done in contradistinction to what, in fact, was done. Secondly, it is quite clear that the test is not “as soon as practicable”. In light of his reference to O’Brien (para. 10 supra), Birmingham J. could not have intended to convey that impression by the passage quoted. The passage, however, starkly highlights the problem. Is there a sufficient compliance with the subsection where a person has been rearrested “for the purpose of” being charged forthwith, but as a matter of court finding has not been “actually charged forthwith”? [Emphasis added]
The second aspect of this issue arises only where a statutory infringement has been established, in which event the resulting consequences must be addressed. In this case it is said that the District Court had no jurisdiction to try the appellant on the preferred charge. Having quoted from The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39, and having referred to Director of Public Prosecutions v. Stuart Clein [1981] I.L.R.M. 465 and Director of Public Prosecutions (McTiernan) v. Bradley [2000] 1 IR 420, Birmingham J. concluded, that absent any question of a conscious and deliberate violation of the appellant’s constitutional rights, it mattered not how he was brought before the District Court. Consequently, irrespective of his decision on the s. 10(2) point, the jurisdiction of the District Court was left untouched as was the validity of the conviction. This conclusion adheres to the decision in Fawsitt.
There are, therefore, two aspects to this issue. As argued before the Court, the s. 10(2) point preceded the jurisdictional one. Following that approach, I propose firstly, to deal with the interpretative problem.
Section 10 of the Criminal Justice Act 1984, as amended by s.24 of the Criminal Justice (Amendment) Act 2009, reads:-
“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him, he shall not –
be arrested again in connection with the offence to which the detention related, or
be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested suspected, or ought reasonably to have suspected him of having committed,
except on the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that either of the following cases apply, namely:
further information has come to the knowledge of the Garda Síochána since the person’s release as to his suspected participation in the offence for which his arrest is sought, or
notwithstanding that the Garda Síochána had knowledge, prior to the person’s release, of the person’s suspected participation in the offence for which his arrest is sought, the questioning of the person in relation to that offence, prior to his release, would not have been in the interests of the proper investigation of the offence.
A person arrested under that authority shall be dealt with pursuant to section 4.
(1A) …
(2) Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith.
(3) ….”
The meaning of subs. (2) is essentially one of statutory interpretation. Despite an abundance of rules and sub-rules as to how a legislative provision should be construed, and notwithstanding statutory intervention (generally, the Interpretation Acts 1937 to 1997 and the Interpretation Act 2005), the basic rule remains the primary rule: words should be given their plain, ordinary and natural meaning set in the context of the surrounding statutory provision or, indeed, of the statute as a whole. To that may I add the following which are entirely uncontroversial:
(a) As this is a penal statute the words must be construed strictly. Authority is hardly required for this proposition, but if it is: The People (Director of Public Prosecutions) v. O’Toole & Hickey (Unreported, Court of Criminal Appeal, 20th July, 1990) at p.42, dealing with s. 4 of the Act of 1984; The People v. Farrell [1978] I.R. 13; and The Emergency Powers Bill, 1976 [1977] I.R. 159, where at p.173 it was said that “[a] statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed”.
(b) It must be presumed that words are neither tautologous or superfluous. The legislature must be expected not to have been wasteful in its word use: Cork County Council v. Whillock [1993] 1 I.R. 231 at 239;
(c) All words must be given a meaning; it must be presumed that they were inserted for a purpose. Any construction which leaves without a meaning words in a statute, will normally be rejected. See Maxwell on The Interpretation of Statutes, 12th Ed.,(London, 1997) at p.36; Whillock, ibid at 237; and Bennion, Statutory Interpretation, 4th Ed., (London,2002) at pp. 993 to 994.
The context of this provision must be viewed against the right of a person to his freedom and his liberty. This right is antecedent to the Constitution. It is also enshrined in the Constitution by virtue of Article 40. Therefore, this fundamental right in a democratic state governed by the rule of law cannot be affected by unlawful detention. Evidently, arrest and detention without charge is a significant imposition on this right. The position of a person prior to charge is quite different to a person who has been charged. The former, in addition to his constitutional right to freedom, has a right to his good name and his assumed innocence is unaffected even by charge. Therefore, any intrusion on such right is to be saved only if strictly within the statutory parameters, otherwise there will not be a detention in accordance with law.
Prior to 1984 the gardaí had no power to detain a person for the purposes, inter alia, of (i) furthering their investigation of a suspected crime; (ii) formulating a charge; or (iii) conveniently gathering or assembling evidence. If they did, the person’s detention would have been unlawful and, save for those situations covered by the Offences Against the State Acts 1939 to 1998, which are not relevant here, his immediate release would have been ordered. Section 4 of the Act of 1984 conferred for the first time such a power of detention where necessary for the proper investigation of the offence. By reference to offences carrying a term of imprisonment of five years or more, a person, who has been arrested without warrant on suspicion of having committed such an offence, can be detained for an initial period of six hours and, on the direction of an officer not below the rank of superintendent, for a further six hours. By virtue of s. 9 of the Criminal Justice Act 2006, a further twelve hours may be specified on the direction of a chief superintendent or a person of higher rank. In all, detention for twenty four hours is now possible under the section, with such detention being for the purposes of investigating an offence. Consequently, this provision is a significant one, not only from the gardaí’s point of view, but also from the subject’s point of view.
It is, therefore, not at all surprising that one finds a provision such as s. 10 also inserted in the same Act. That section, as its principal rule, prohibits the rearrest of a person, inter alia, for the same offence who previously has been detained on suspicion of having committed the offence and released without charge. That prohibition has two exceptions. Firstly, it can be disapplied on the authority of the District Court when further information has come to light. In such cases, there is judicial supervision over the grounds upon which the rearrest is sought. Secondly, subs. (2), which requires no judicial intervention, permits the rearrest of a person “for any offence for the purpose of charging him with that offence forthwith”. By its terms the offence underlying the rearrest is not confined to that which resulted in the original arrest and detention. It may be any offence. What is required is that the arrest must be “for the purpose of charging him with that offence forthwith”. It is as to the correct meaning of this phrase, in the context of the facts as found, that gives rise to the first aspect of the issue being dealt with.
There are a number of authorities touching upon the interpretation of s. 10(2) of the Act of 1984, and a like provision in the Criminal Justice (Drugs Trafficking) Act 1996 (the “Act of 1996”). As O’Reilly v. The D.P.P. (para. 10 supra) is under appeal, I do not propose to refer to it. In Director of Public Prosecutions v. Early [1998] 3 IR 158, the High Court had to consider the meaning of s. 4(5) of the Act of 1996. The scheme of that Act, relative to arrest without warrant, release without charge and rearrest, is similar to that contained in the Act of 1984. Section 4, with modifications not here relevant, parallels s. 10 of the Act of 1984. Subsection (5) is virtually identical to s. 10(2) of the Act of 1984.
At p. 169 of the report of Director of Public Prosecutions v. Early, McGuinness J. said the following:-
“Section 10(2) of the Act of 1984 and s. 4(5) of the Act of 1996 permit a further arrest for this purpose [to charge the person with an actual offence] and for this purpose only. It is essential to distinguish carefully and clearly between arrest for the purposes of detention for investigation and arrest for the purposes of charging the alleged offender, of bringing him…before the court and of initiating the procedure under the Criminal Procedure Act, 1967…”
That observation is undoubtedly correct. If the purpose of the rearrest is not to charge the person with an offence, then clearly the arrest is not covered by the subsection. That point is made in all of the cases, some of which I further refer to in a moment. However, that in itself does not dispose of the interpretation issue. It simply disapplies the subsection if “the purpose” of the arrest is not as provided for. But assuming the purpose is inclusive, it leaves unresolved what meaning should be given to the word “forthwith” in the subsection. That particular point was not an issue in Early and consequently was not dealt with.
A case directly on s. 10(2) of the Act of 1984 Act is Massoud v. Watkins & Anor [2005] 3 IR 154. On the 4th November, 2003, the applicant and his wife were arrested on suspicion of having obtained money by false pretences. They had received more than €680,000 from an insurance company on foot of a fraudulent claim to the effect that the wife had undergone a particular surgical procedure. The pair were detained under s. 4 of the Act of 1984, and subsequently had their period of detention extended under subs. (3) of that section. At about 9.00 p.m. that evening, the gardaí reviewed the evidence then available. The investigating gardaí had concerns that if released without charge, both might flee the jurisdiction. A decision was made to charge them with the offence for which they were arrested. They were then told that they would be released from s. 4 detention, but would be rearrested for this particular purpose. After the rearrest, which was effected at about 9.08 p.m., the applicant and his wife were placed in a cell until 11.35 p.m. when they were charged with the offence of conspiracy to defraud, apparently on the direction of the D.P.P. They were kept in custody overnight and were brought before the District Court the next day, where they were remanded to appear on the 12th November, 2003.
On the 7th November, 2003, leave was given to institute judicial review proceedings in which two issues were raised. The first is not relevant. The second alleged that the applicant’s rearrest at 9.08 p.m. on the night in question and his subsequent detention were unlawful as being contrary to the provisions of s. 10(2) of the Act of 1984. As a consequence he sought an order prohibiting the D.P.P. from further prosecuting him on the conspiracy to defraud charge.
Gilligan J. found as a fact that the purpose of the rearrest was to charge the applicant with the offence of having obtained money by false pretences. Sometime during the course of his subsequent detention, and following consultation with the D.P.P., a decision was made to charge him not with the offence for which he was arrested, but rather with the offence of conspiracy to defraud. The trial judge quoted with approval from Early and expressed the view that, following the rearrest of a person under s. 10(2), the gardaí are not permitted to do anything relative to that person, other than that which is directed at charging him with the offence for which he had been rearrested. The case was disposed of on the basis that the relevant provision did not permit a rearrest for the purposes of the gardaí obtaining instructions from the D.P.P. as to what charge should be preferred and, secondly, as the rearrest had been for the purposes of preferring a specific charge, it was not open to the gardaí or notice party to prefer a different charge. Once that decision was taken, the learned judge found that the original arrest became unlawful as did his detention. As with Early, the facts of Massoud did not draw specific attention to the requirement of charging “forthwith”.
Massoud, however, is also interesting in that the judge, having found a breach of Article 40.4.1 of the Constitution, went on to deal with the consequences of such finding. Submissions were sought by Gilligan J. as to what order should be made. On the assumption that the headnote to the report is correct, it would appear that the relief sought was granted, namely an order prohibiting the D.P.P. from proceeding with the conspiracy charge. Whilst the jurisdiction point does not appear to have featured, and whilst it is also unclear as to precisely what happened in the District Court, save that the charge must have been entered as otherwise no remand would have been possible, it is noteworthy that the effect of the order was to prohibit the further prosecution of the applicant on the conspiracy charge.
In O’Brien v. Special Criminal Court & Anor [2008] 4 IR 514, the applicant was arrested on the 6th April, 2004, at 8.45 p.m. under s. 30 of the Offences against the State Act 1939, as amended (“the Act of 1939”), on suspicion of being a member of an unlawful organisation. His original detention was subsequently extended by a further twenty four hours. On the 8th April at 5.25 p.m., the D.P.P directed that he be brought before the Special Criminal Court and there charged with such offence. No immediate action was taken following receipt of this direction. At 8.25 p.m. he was released from his s. 30 detention and, at 8.35 p.m., he was rearrested under s. 4 of the Criminal Justice Act 1997 in respect of the same offence. Having ascertained that the Special Criminal Court would be sitting on the 9th April at 12.00 midday, the gardaí informed the applicant that he would be brought before that sitting of the Court, and there charged with the offence in question. Thus, the applicant was originally arrested under s. 30 of the Act of 1939 and was later rearrested under s. 4 of the Act of 1997.
In the proceedings instituted, several grounds of argument were advanced. Only one is of concern to this appeal. Where a person, having previously been arrested and detained under s. 30 of the Act of 1939 and later released without warrant, is rearrested under s. 4 of the Act of 1997, that rearrest is subject to the specific statutory requirements of s. 30(A) of the Act of 1939, as amended. Subsection (3) of s. 30(A), which was inserted by s. 11 of the Offences against the State (Amendment) Act 1998, reads:-
“Notwithstanding subsection (1) of this section, the person to whom that section relates may be arrested for any offence for the purpose of charging him with that offence forthwith.”
In other words, it is identical to s. 10(2) of the Act of 1984.
The allegation in O’Brien of interest to this Court rests on s. 30(A)(3) of the Act of 1939 under which a person’s rearrest is prohibited unless it is for the purpose of charging him forthwith with the offence for which he was rearrested. In her judgment, Denham J., with whom Murray C.J agreed, rejected the test within the section as being that of “as soon as practicable”. It was, as the section said, “forthwith”. At p. 527 it is stated:-
“Therefore it is necessary to consider whether the applicant was charged, pursuant to s. 30A(3), that is “forthwith”. The word “forthwith” is not a technical term, nor a term of art. It should be given its common and usual meaning. It is defined in the Concise Oxford Dictionary as: “immediately; without delay”. Thus the law requires that a person in the position of the applicant be charged immediately, without pause or delay. The term “forthwith” requires immediate action. This is in contrast to the pragmatic requirement in the term “as soon as practicable…”
Having then posed the relevant question, the learned judge continued:-
“He was arrested at 8.35 p.m. on 8th April, 2004, and charged before the Special Criminal Court shortly before 12.00 noon on 9th April, 2004. In all the circumstances this was “as soon as practicable”, but this is not the requirement of the law. The law required that he be charged “forthwith”, and that was not done. Therefore his detention prior to charging was unlawful.”
This is, therefore, clear authority directly on the point under consideration.
Fennelly J., with whom Murray C.J also agreed, delivered a separate judgment. Having set out the purpose of the subsection, namely to prevent abuse by repetitive detention, he stated that the sole question was whether the applicant was charged “forthwith”. In contrast this test imposed a more stringent requirement than “as soon as practicable”. With counsel’s submission that the word “forthwith” must be equated with “immediate” or “at once”, the learned judge agreed. In answer to practicable problems which may be encountered, such as travel, contacting judges, or assembling courts, the judge responded that “the answer is, I think, that a person does not have to be brought before a court to be charged”. At p. 536, Fennelly J. concluded:-
“Consequently, because the applicant was not charged “forthwith” upon his arrest, his further detention thereafter was unlawful. That is because the arrest had to be “for the purpose” of charging him. As a result, he was not lawfully brought before the Special Criminal Court.”
It seems to me that the essence of the decision on this issue was governed by the construction of the word “forthwith”. I believe that this is more likely than any suggestion that the decisive factor was not one of time but of purpose. It would have been open on the evidence to conclude that the purpose of the arrest was to detain the applicant overnight and thereafter to bring him before the Special Criminal Court for the purpose of charge. If that had been the basis, neither reference to, nor reliance on, the adverb would have been necessary. It is therefore more likely in my view that the Court’s decision was on the “forthwith” issue. That being the case, O’Brien can be considered as a direct authority on this point.
There are many situations not covered by s. 10(2) of the Act of 1984. I mention a number only by way of illustration; there may be many more. The section has no application where:
(i) the purpose of the rearrest is unrelated to charging the person; such other reasons for rearrest may relate to ongoing investigations or perceived flight risk, but clearly are not confined to these examples;
(ii) the purpose is not to charge the person with the offence grounding his rearrest;
(iii) at any time pre-charge, a decision is made not to charge the person with the offence last mentioned; the obligation to remain within the section is a continuous one;
(iv) at any time pre-charge, the gardaí, relative to that person engage in any activity, by act or omission, which is not directly and immediately related to charging the arrested person; and
(v) the charging is not “forthwith”, even if all of the other ingredients within the subsection are satisfied.
On the other hand the section clearly applies to a person who:
(i) following arrest has been detained pursuant to s. 4(2) of the Act of 1984. It is immaterial whether the detention period has or has not been extended; and
(ii) is rearrested in respect of any offence, so as to charge him with that offence forthwith. The offence referred to is not confined to that which caused his arrest in the first instance.
As above stated, the threshold is not “as soon as practicable” or, indeed, even “as soon as possible”. The preferred test was deliberately chosen no doubt to minimise the intrusion into one’s constitutional right to freedom. Given s. 4 of the Act of 1984, one can readily see the justification for this. Just as the right to liberty has not diminished, neither has the necessity to justify its abridgment. The legislature confirmed this view as, when reacting to O’Brien, it reaffirmed, by retention, this requirement of “forthwith”, albeit adding into s. 30(A)(3) of the Act of 1939, the further option of rearrest for the purpose of bringing the person before the Special Criminal Court “as soon as practicable” (s.187 of the Criminal Justice Act 2006). No amendment to s. 10(2) of the Act of 1984 however was made. Thus the adverb “forthwith” is an integral part of the statutory safeguard and in its context must be construed by reference to its plain and ordinary meaning.
Dictionary definitions can be a guide and, in some cases, are helpful. All of quality offer, in most cases, several potential meanings for any word search. Of necessity, this is the purpose of a dictionary. It suggests many options but leaves the definitive meaning to the context of the inquirer. The definition of “forthwith” is no different. A few examples of its potential meaning include: at once; immediately; instantly; promptly; quickly; directly; now; like a shot; or with no time intervention.
In my view, when this issue of law is raised there must be a finding that on rearrest the person is charged “forthwith”, otherwise s. 10(2) of the Act of 1984 is breached. I do not agree that a rearrest “for the purpose” of charging forthwith is sufficient if on the facts the arrested person has not actually “been charged forthwith”. The consequences of the former fail to take account of or give meaning to the very requirement of the subsection. On that view, once the “purpose” of the rearrest is to charge forthwith, it matters not for how long the actual charge is delayed or the reasons therefore (absent any mala fides), provided the other elements of the subsection have not been breached. That could lead to an abuse of freedom, whether deliberately or otherwise. The provision was designed to prevent both.
The adverb “forthwith” is an adverb of time: time present and not time past or time to come. It answers the question as to “when” the arrested person must be charged. It qualifies not the purpose of the arrest but the timing of the charge. However, it must be viewed in context, in particular by reference to the provisions of ss. 4 and 10 of the Act of 1984. Section 10(2) is predicated on an act of rearrest which, depending on circumstances, may be pre-planned, as here, or it may be fortuitous or random. These variations may occur quite legitimately. The section does not deprive the gardaí of the power of detention following arrest, if the resulting detention does not breach any requirement of the section, including the time element. That being so, it is difficult to see how a construction demanding instant charge is what the provision envisages. To so hold, could mean having to charge a person in the most extraordinary circumstances, which otherwise could not be justified and might render compliance with the provision impossible, as with e.g. a fortuitous arrest. The legislature could never have so intended. In my view, the time requirement would be satisfied if the arrested person was charged “promptly”, i.e. with pressing urgency. By this I mean a standard or threshold evidently more demanding than “as soon as practicable”, but also more demanding than “as soon as possible”. It is one of imperative exigency. Time, so to speak, is of the essence.
Such approach seems consistent with authority such as The Queen v. Justices of Berkshire (1878) 4 Q.B.D. 569, where Cockburn C.J. stated at p. 471 that:-
Compliance with the statutory requirement can therefore only be judged by reference to the individual circumstances of each case. As adverted to, there may well be differences between an absconder who by chance is randomly arrested and others whose whereabouts and availability are well known. With the latter, the gardaí have virtually total control. They can generally decide when and where to arrest. With the former, they may have none. Therefore, circumstances are of significance.
In this case the appellant falls acutely into the former group. He turned up by appointment at a given location, at a particular time and for a particular purpose. His rearrest related to two offences which, from a charge point of view, had no unusual features. Charge sheet no. 432096 verifies this. It reads:-
“That you the said accused/defendant did, on the 21/08/2008 at Tudor Leisure Centre, 28 Marlborough Street, Cork, in the said District Court area of Cork City, District No. 19 steal property to wit (cash to the value of €700) the property of Eamon O’Driscoll contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.”
In such circumstances, therefore, could it be said that given the time frame of one hour and fifteen minutes, the appellant was charged “forthwith”?. In my view, it could not. The charge sheet could easily have been printed prior to his arrest and one wonders why this was not done - convenience, I suspect, which in my view is unacceptable, as is the offered explanation regarding the printer. I note, in any event, that such explanations account for only twenty five minutes of the period of detention. The balance, I have no doubt, resulted from routine practice, casually pursued, in a manner quite indifferent to the appellant’s liberty. That is not sufficient. Therefore, the appellant was not, as the section demands, charged promptly or with urgency. Such a time frame exceeded the provisions of the statute and, consequently, the detention of the appellant was unlawful.
Finally, on this aspect of the case, I respectfully endorse the following passage of the judgment of the learned trial judge where he said (at p.12):-
“For my part, I would deprecate any suggestion that persons should be placed in a cell as a matter of routine or, indeed, a matter of administrative convenience. If an individual represents no security risk then I can see no reason why it would be necessary to place him in a cell and why he could not be simply left to await developments in the public area of the station.”
I entirely agree with this observation. It would be an entirely unacceptable situation if a person’s liberty was denied purely by way of policy, or for convenience, when the purpose of his presence can be otherwise addressed.
The Jurisdictional Point
In The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 at 43, Davitt P., when discussing methods by which the attendance of an accused person before the District Court can be secured, said:-
“He could, of course, attend, voluntarily, if he so wished; so far as the exercise of the Court’s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured, so long as he is present before the District Justice in Court at the material time. Even if is brought there by an illegal process…”
The learned President quotes from Hawkins, Pleas of the Crown, 8th Ed., (1824), vol. 2 at p. 420, in support of this proposition, where the justification offered was that “the law will not so far regard a slip in the process, as to let the defendant out of court in order only to have him brought in again in better form”. He also referred to the case of R. v. Hughes (1879) 4 Q.B.D. 614, which Denham J., in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98 at 107, saw as being the case upon which “a body of Irish precedent has been built.”
42. That was a case where the accused was a police constable who illegally procured a warrant for the arrest of a person called Stanley upon a charge of assaulting and obstructing him in the discharge of his duty. Upon this warrant, Stanley was arrested and at his trial the accused gave false evidence against him. As a result the justices convicted and sentenced Stanley to imprisonment. The accused was afterwards indicted for perjury. He defended himself by asserting that the proceedings in which he had sworn were coram non judice as the justices had, in the circumstances, no jurisdiction to try Stanley. That plea was ultimately rejected. In his judgment, Lopes J. said (at p.622) “I think the warrant in this case was mere process for purpose of bringing the party complained of before the justices, and had nothing whatever to do with the jurisdiction of the justices”. He continued by declaring that it mattered not whether Stanley “was summoned, brought by warrant, came voluntarily, was brought by force, or under an illegal warrant”. Based on such authority, Davitt P. so decided in Fawsitt.
43. Since then the issue has not only been touched by authority, but is now governed by a series of decisions which, repeatedly and all to one voice, have held with the rule or principle outlined in Fawsitt. In Attorney General (McDonnell) v. Higgins [1964] I.R. 374 at 391, Kingsmill Moore J. said:-
“Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to compel the attendance of the person accused of the offence…
It is equally clear that if a person is in Court, voluntarily or involuntarily, legally or illegally, an information or complaint may be made there and then “ore tenus” to the Justice, accusing such person of having committed a summary offence, and, if the information contains the necessary ingredients, the person may at once be charged with the offence …”
Reference was made to Reg (Daly) v. Justices of County Cork [1898] 2 I.R. 694, where, once again relying on Hughes, Gibson J. said much the same. The fact that Higgins was not a case of arrest and detention, but one of procedural amendment, hardly takes from it. In any event there are several other decisions to like effect including Director of Public (Ivers) v. Murphy [1999] 1 IR 98; The State (Lynch) v. Ballagh [1986] I.R. 203; Director of Public Prosecutions v. Michael Delaney [1997] 3 I.R. 453; and Director of Public Prosecutions (McTiernan) v. Bradley [2000] 1 IR 420. Therefore, as a matter of principle, the position seems well established and, at least from my researches, does not appear to have been challenged.
This rule is not absolute and as cases have shown the exception list is not closed. It is however limited where the issue is whether the validity of the preceding process may impact upon jurisdiction. To this, of course, may be added circumstances where it is alleged that during the process evidence has been obtained by either illegal or unconstitutional means. Such cases are not jurisdictional cases but cases of evidential admissibility. Habeas corpus applications and civil proceedings for damages are likewise not material.
The following are examples of where a preceding process may impact on jurisdiction:
(a) where there has been a deliberate and conscious violation of one’s constitutional rights. Keane J. in Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218 at 228 to 229 said:-
“[W]here the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights, of which the most graphic example is the The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, the court may be justified in refusing to embark upon the hearing.”
(b) where the relevant conduct is of such a nature as to outrage, insult or defy the legal or constitutional authority or status of the court. McCarthy J. in Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61 at 66 said:-
“If cases arise where the circumstances of arrest are such as to amount to an affront to the constitutional role of the courts, then the District Justice will refuse to proceed with the matter and will discharge the person before him.”
O’Flaherty J. in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98 at 104 seems to have inferred the same.
(c) where the validity of a preceding event, for example an arrest, is an essential ingredient to ground a charge upon which an accused person stands before the court. See s. 49 of the Road Traffic Act 1961, as amended, and D.P.P. v. Forbes [1993] I.L.R.M. 817.
46. Apart from the above I have not been able to identify any other example where in like circumstances a successful challenge to jurisdiction has been mounted. I remain conscious of Massoud in this context, in which the Court undoubtedly prohibited the further prosecution of the applicant on the basis of a prior unlawful detention under s. 10(2) of the Act of 1984. However, it is not absolutely clear as to whether the jurisdictional point, as a point in its own right, had been raised. Therefore, it may be more prudent to exclude that decision from the above list.
The cases last mentioned could not, however, have intended to close out an argument if conduct of the type above described was established. I, therefore, take the view that there remains the possibility of future cases identifying circumstances where jurisdiction will be refused. These may arise either under the Constitution, within a statutory framework or as Convention cases. If and when arising, each case will have to be considered on its own circumstances.
It is somewhat surprising to me that the court’s approach to process in this context seems somewhat indifferent. The rationale set out in Hawkins is to the effect that once in court the preceding method of securing one’s attendance is at an end; that is, the process is over, so why concern oneself with it? Why insist upon a person’s presence legitimately obtained via a non-objectionary process? No matter how illegal, since the object has been secured, let the process continue. Hughes offers no better rationale. I must say that I find this reasoning unattractive. The rule of law has a foundation not simply in substantive proceedings, but in all proceedings. Due process must be protected. However, the appellant does not make such a case: he claims to come within the exception to Fawsitt, as referred to at para. 44(a) supra. Therefore, further consideration of this point is not presently required.
The high point of the appellant’s case is that at some point between 16.30 and 17.45 on the afternoon of the 27th October, 2006, but prior to charging, his detention became unlawful by virtue of non-compliance with s. 10(2) of the Act of 1984. Therefore, his charging was tainted with illegality and, consequently, neither the charge sheet nor the bail bond were a valid means by which his attendance at the District Court was secured. These events, which it is alleged were a deliberate and conscious violation of his constitutional rights, impacted critically on the jurisdiction of the District Court. Hence, the relief of certiorari.
In accordance with the principles outlined above, the appellant simply cannot succeed on this point. The validity of his arrest or his charging prior to his appearance before the District Court are not prerequisites to that Court having jurisdiction to try him on the theft charge. It is no defence on his part to assert that his attendance was secured under pain of penal sanction and was, therefore, involuntary. That very point was disposed of in The State (Lynch) v. Ballagh [1986] I.R. 203 at 213 where Walsh J. dealing with this very point said:-
“Even assuming that his presence there was involuntary because of the bail bond of the recognisance, the complaint was made there and then and that was sufficient to give jurisdiction to the District Justice in this summary offence.”
There cannot be any credible argument that by virtue of the presenting circumstances, there was a deliberate and conscious violation of the appellant’s constitutional rights. No such conclusion can be drawn from the established case law. Therefore, the District Court was at all times possessed of jurisdiction to try this offence and, in consequence, the resulting conviction cannot be set aside.
51. I would, therefore, dismiss the appeal.
