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Cite as: [2014] IESC 28
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Judgment Title: Director of Public Prosecutions -v- C. Neutral Citation: [2014] IESC 28 Supreme Court Record Number: 428/12 High Court Record Number: Bill No. DU1175/08 Date of Delivery: 09/04/2014 Court: Supreme Court Composition of Court: Murray J., Hardiman J., Fennelly J., Clarke J., MacMenamin J. Judgment by: Fennelly J. Status of Judgment: Approved
Notes on Memo: Special Criminal Court correct in interpretation of OAS Act. | ||||||||||||||||||||
THE SUPREME COURT [Appeal No: 428/2012] Hardiman J. Fennelly J. Clarke J. MacMenamin J.
The People at the suit of the Director of Public Prosecutions Prosecutor/Appellant and
Defendant/Respondent JUDGMENT of Mr. Justice Fennelly delivered the 9th day of April, 2014.
1. The Director of Public Prosecutions (hereinafter “the Director”) has, pursuant to s. 34 of the Criminal Procedure Act 1967, referred to this Court a question of interpretation of s. 30(3A) of the Offences Against the State Act 1939 ("the Act of 1939”), as inserted by s. 21 of the Criminal Justice (Amendment) Act 2009. Section 34 of the Act of 1967 provides as follows:
(2) The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add. (3) The Supreme Court shall assign counsel to argue in support of the decision. 3. The trial of the respondent took place in the Special Criminal Court over four days in November 2011 on a single count of unlawful possession of an explosive substance. The only evidence against him was a statement of admission made in answer to garda questions while he was detained pursuant to the provisions of the Act of 1939. On 29th November that Court gave its ruling acquitting him. The reason for the decision was that, in the opinion of the Court, the Respondent had been in unlawful custody when he made the statements of admission. The circumstances in which those statements were made needs, therefore, to be described. 4. On the 11th September 2010 the Respondent was arrested by a member of the Garda Síochána pursuant to s. 30 of the Act of 1939 on suspicion that he was a member of an unlawful organisation contrary to the provisions of s. 21 of that Act. This arrest followed a search of the respondent’s home during which the Gardaí discovered an electrical grinder and a quantity of ammonium nitrate, an explosive material. The respondent was taken to Monaghan Garda Station. He was introduced to the member in charge and detained. The member in charge was informed that the respondent had been arrested on suspicion of membership of an unlawful organization. 5. At first the respondent was questioned in relation to the membership charge. At a certain stage during his detention, he was informed that he was then going to be questioned in relation to the explosives that had allegedly been found at his home. Having initially declined to answer any questions, he changed his position and made a statement in which he accepted responsibility for possession of both the electric grinder and the explosive (ammonium nitrate). This was the evidence on which the prosecution relied. 6. Counsel on behalf of the Respondent argued that his detention had become unlawful at the point at which the Gardaí commenced to question him about an offence other than the one for which he had been arrested, namely membership of an unlawful organisation. Counsel argued that, if the Respondent was going to be questioned about another suspected offence, it was essential that the Gardaí comply with the provisions of section 30(3A) of the Act of 1939, which had not been done. 7. Counsel for the Director argued that compliance with s. 30(3A) was not required. The Gardaí, it was argued, had the right to question the respondent about any offence as long as they continued to hold the reasonable suspicion that he was a member of an unlawful organization. 8. The Court ruled that the Respondent’s detention for the purpose of questioning him about the possession of explosive substances, being an offence other than the one of which he had originally been suspected and which formed the basis for his arrest and detention, was not lawful, in the absence of compliance with the requirements of s. 30(3A) of the Act. The Court, therefore, ruled that the respondent’s confession was inadmissible. 9. It is in the context of that ruling of the Special Criminal Court, that the Director has referred a question of law to this Court. That question, corrected for a number of typographical errors, reads:
AND WHEREAS the admissibility of a confession (and the prosecution case) stood to be determined upon the Special Criminal Court's construction of Section 30 (3A) of the Offences against the State Act, 1939 as inserted by Section 21 of the Criminal Justice (Amendment) Act, 2009 which provides "(3A) If at any time during the detention of a person pursuant to this Section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed an offence (the "other offence') referred to in subsection (1) of this section, being an offence other than the offence to which the detention relates, and – (a) The member of the Garda Síochána then in charge of the Garda station, or (b) (Not applicable) has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained, but nothing in this subsection authorises the detention of a person for a period that is longer than the period which is authorised by or under the other provisions of this Section." AND WHEREAS the Defendant had been lawfully arrested on suspicion of membership of an unlawful organisation and the Special Criminal Court holding that the said suspicion still subsisted at the time he was interrogated in relation to the said offence of unlawful possession of explosives. AND WHEREAS the prosecution submitted that the provisions of the said Section 30 (3A) only arose when the original suspicion justifying arrest and detention had dissipated. AND WHEREAS the Special Criminal Court ruled that the provisions of the said subsection applied and as "there was no evidence from the member in charge relating to "reasonable grounds for believing" as referred to in the section "that the continued detention of the accused for the purpose of questioning him in relation to offences other than membership of an unlawful organisation and his questioning in relation to such other offences was unlawful. AND THERE being no other evidence the Court directed an acquittal of the Defendant. The Director of Public Prosecutions pursuant to Section 34 of the Criminal Procedure Act, 1967 and without prejudice to the verdict, now refers the following question of law to the Supreme Court: "Was the Special Criminal Court correct in its construction of Section 30 (3A) of the Offences Against the State Act, 1939 as amended by Section 21 of the Criminal Justice (Amendment) Act, 2009?"
(2) Any member of the Gárda Síochána (if he is not in uniform on production of his identification card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant. (3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours. (3A) If at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed an offence (the “other offence”) referred to in subsection (1) of this section, being an offence other than the offence to which the detention relates, and— (a) the member of the Garda Síochána then in charge of the Garda Síochána station, or (b) in case the person is being detained in a place of detention, other than a Garda Síochána station, an officer of the Garda Síochána not below the rank of inspector who is not investigating the offence to which the detention relates or the other offence, has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained, but nothing in this subsection authorises the detention of the person for a period that is longer than the period which is authorised by or under the other provisions of this section. (4) An officer of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for a warrant authorising the detention of a person detained pursuant to a direction under subsection (3) of this section for a further period not exceeding 24 hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned. 12. The Director, in her submissions, emphasises that there was clear evidence that the arresting member believed that the Respondent was a member of an unlawful organisation at the time he invoked the powers of arrest pursuant to section 30 of the Act and, crucially, that this suspicion persisted throughout the period of the Respondent’s detention. Her central legal submission is that that s. 30(3A) should be interpreted to the effect that, if the suspicion grounding the original arrest is dissipated during the currency of the s. 30 detention or if the detention of the suspect is no longer necessary for the proper investigation of the original offence, the Gardaí may continue to detain him for the remaining period of that detention for the investigation of another offence under the Act of which he is reasonably suspected at that time, provided the member in charge of the Garda station “has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence.” On the facts of the present case, the Gardaí continued to suspect the Respondent of the original offence of membership of an unlawful organisation. Thus, it is submitted, there was no obligation on the Gardaí to seek the authority of the member in charge to question him about an offence other than the offence for which he had been arrested. 13. The Director also submits that s. 30(3A) should be interpreted as being in pari material with a number of other statutory provisions which provide for detention on suspicion of commissions of offences of different types. 14. Part 4 of the Criminal Justice (Amendment) Act, 2009, which includes section 21 which inserts inter alia sub-section (3A) into s. 30 of the Act, shows, it is said, that the intent of the legislature was to bring some element of uniformity to the re-arrest and detention powers of the Gardaí under a number of statutes. That Part concerns amendments, not only to s. 30 of the Offences against the State Act 1939 but also to s. 2 of the Criminal Justice (Drug Trafficking) Act, 1996, section 50 of the Criminal Justice Act, 2007 and s. 4 of the Criminal Justice Act 1984. These three pieces of legislation authorise the arrest and detention for questioning of persons suspected of having committed certain crimes. The amendments made by Part 4 of the 2009 Act concern the circumstances in which a person may be re-arrested. 15. It is submitted, on behalf of the Director, that an examination of the provisions of s. 2, subsections 5 and 6 of the Criminal Justice (Drug Trafficking) Act 1996, section 50(6) and (7) of the Criminal Justice Act, 2007 and section 4(5A) of the Criminal Justice Act, 1984 (which was inserted by the Criminal Justice Act 1999), demonstrates that each provision allows for a person who was detained on suspicion of having committed a certain offence, to be further detained and questioned regarding another offence, where the suspicion on which the original arrest and detention was based no longer exists or where the continued detention of the accused is no longer required for the investigation of the original offence. 16. The Director relies on the following passage from David Dodd on Statutory Interpretation in Ireland (Tottel Publishing, 2008), p213:
18. In this connection, the Director relies on the decision of this Court, particularly on the statement of Walsh J in People (Director of Public Prosecutions v Howley [1989] ILRM 629. That statement is as follows:
20. The respondent submitted essentially that the words used in the Section must be given their ordinary and natural meaning, which is that the requirements of subsection (3A) must be complied with if the detained person is to be questioned concerning suspicion of commission of an offence other than the one in respect of which he was originally arrested and detained. That means that the member in charge must form the opinion that his continued detention is necessary for the proper investigation of the second or other offence. 21. The nub of the point, it is said, is that the law had been changed by the enactment of Section 30 (3A) of the Act of 1939, affected by the passing into law of s. 21 of the Act of 2009. The respondent accepts that, prior to the enactment of that section, the law was as stated in Howley. The position then was that, under s. 30 of the Act of 1939, a Garda with the requisite suspicion could arrest and detain a person for a given offence for a period of 24 hours. The detention could be extended by a Chief Superintendent for a further period of 24 hours. The person detained could also be questioned about other offences provided the arresting Garda still had a bona fide suspicion in relation to the original offence for which the person was arrested. 22. This position in law, it is submitted continued, in spite of the passing of the sections, which the Director says are in pari material with s. 30, namely s. 2(5) and (6) of the Criminal Justice (Drug Trafficking) Act 1996, s. 50(6) and (7) of the Criminal Justice Act, 2007 or s. 4(5A) of the Criminal Justice Act, 1984. While those enactments were in force contemporaneously with s. 30 of the Act of 1939, no provision was made for any role for the member in charge in respect of the detention or continued detention of a person detained under s. 30 of the Act of 1939. 23. The situation was changed by the insertion of subsection (3A) by of s. 21 of the Act of 1939. A role is allotted to the member in charge of the Garda Station in respect of the continued detention of a person detained under s. 30 where that person is suspected of having committed an offence different from that on which he was originally arrested and detained. The Respondent could not have continued to be detained in accordance with law for the purpose of questioning him about an offence other than that in respect of which he was originally detained without the intervention of the member in charge and that member having “reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence”. 24. The respondent responds to the submission of the Director that subsection (3A) applies only where the original suspicion which grounded the arrest has ceased and therefore that the original power to detain is at an end, by observing that this involves implying words and meanings into the section by reference to the use of provisions in other unrelated statutes. This would also involve departure from the normal rules for the construction of any statute and in particular the strict construction of a penal statute which affects the liberty of citizens. 25. The respondent does not accept that the Offences against the State Act 1939 can be construed as being in pari material with other statutes. That Act with its amendments has always being regarded by the Courts as forming a separate code with very different rules and procedures, when compared to ordinary criminal investigation. Discussion and conclusion 26. It is not disputed that any statements of admission made by the respondent while he was in unlawful custody would be inadmissible in evidence against him. The Special Criminal Court founded its decision to acquit the respondent on its view that, at the relevant time, he had been in unlawful detention. 27. It is not in doubt either that s. 30 of the Act of 1939, being an incursion into the right of liberty of the individual must be strictly interpreted. Insofar as it lays down rules and procedures governing the arrest and detention of individuals the courts insist that they be properly and completely complied with. 28. The question of law which has been referred to this court by the Director poses a straightforward question of interpretation of s. 30 of the Act of 1939, in its amended form. More precisely, it asks whether the requirement imposed by subsection (3A), namely that the member in charge form the requisite opinion that the continued detention of the person is necessary for the investigation of a second offence, must be observed in every case. The Director argues that the subsection must be observed only in cases where the detained person is no longer suspected of the original offence or his detention is no longer considered necessary for its investigation. In other words, it need not be observed in a case where the original suspicion persists. Where the Gardaí to continue to suspect that person of committing the offence in respect of which he was originally arrested and detained, it is said, there is no need to observe the provisions of the subsection. 29. An Act of the Oireachtas is interpreted, at any given time, with all such amendments as have been made by the legislature. In the present case, it is appropriate to commence by looking at s. 30 as it was at the time of the facts relevant to this case. That means that it includes subsection (3A). Looked at in that way subsection (1) authorises a member of the Garda Síochána to arrest any person whom, inter alia, he suspects of having committed an offence under any provision of the Act. Subsection (3) authorises the person’s detention in a Garda Station for a period of twenty-four hours, which may be extended by a Chief Superintendent. Up to this point, it is clear that the person is being detained only in respect of the suspicion of having committed or being involved in the commission of the first offence. 30. Subsection (3A) then authorises the person’s continued detention, if a member of the Garda Síochána, with reasonable cause, suspects the person of having committed another offence. However, if that power is to be exercised, the member in charge of the Garda Station must have reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence. At the risk of oversimplification, in practical terms, the continued detention must be authorised by the member in charge. 31. The Director submits, however, that, even though the Gardaí are now embarking on the investigation of a new or other offence and the person’s continued detention is necessary to investigate that issue, both of which conditions apply here, there is no need to obtain the opinion or authorisation of the member in charge. The Director says that a distinction must be made. The requirement applies only where the suspicion of the original offence has, to use the Director’s phrase “dissipated” or there is no longer any necessity for the detention for the purpose of investigating the original offence. 32. The difficulty for this submission is that the subsection says nothing about it. On its face the subsection requires that the opinion of the member in charge be obtained in every case where the Gardaí embark on investigation of another offence. It seems to me obvious that, if the section stood on its own, without any reference to previous case law, the interpretation is that the opinion of the member of charge is a pre-condition to any continued detention for the purpose of investigating a different offence. A legislative requirement of that sort in a provision authorising the detention of a person would nearly always require to be strictly observed. 33. I can see a possible argument that, if the original suspicion persists, that could, on a narrow reading, suffice to justify the detention and that no further authority is required. However, regard must be had to the fact that the person is being detained on the authority of the State for the purpose of investigating a crime of which he is suspected, but in respect he must be presumed innocent. In the slightly different context of the continued detention of a person in custody pending the arrival of his solicitor at the Garda Station, Clarke J had this to say in his recent judgment in Director of Public Prosecutions v Gormley [2014] IESC 17, at paragraph 8.8:
35. I turn then to consider the implications of Howley. As the respondent accepts, that decision is clear authority for the proposition that, provided the person is genuinely being detained for the purpose of investigation of the original offence, the Gardaí may question him in respect of the suspected commission of other offences. What Walsh J said at page 635 of the Judgment was:
37. This does not mean that Howley was not correctly decided. It merely follows from the fact that the section, in its present form, did not exist and was not interpreted in Howley. 38. Finally, I turn to the Director’s submission that s. 30(3A) should be interpreted in the light of a number of statutory provisions said to be in pari materia with it. Those provisions are s. 2 of the Criminal Justice (Drug Trafficking) Act, 1996, section 50 of the Criminal Justice Act, 2007 and s. 4 of the Criminal Justice Act 1984. Each of these provisions authorises the detention of persons suspected of having committed offences. The Act of 1984 authorises detention for investigation of any offence for which the maximum penalty is a term of imprisonment for a term of five years or more. The Act of 1996 relates to drug trafficking offences and that of 2007 to a number of serious offences including murder. Each of these Acts provides separately for particular periods of detention and for their possible extension. While s. 4 of the Act of 1984 provides that, if at any time during the detention of a person pursuant to the section, there are no longer reasonable grounds for suspecting that he has committed an offence in respect of which he is detained, he is to be released from custody forthwith. Each of the other provisions says the release is to take place if “there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence to which the detention relates.” Thus it is only in the case of the Act of 1984 that the release takes place on the “dissipation” of the suspicion. 39. Section 50 Criminal Justice Act 2007 authorises detention in connection with the investigation of serious offences, including murder. Subsections 6 and 7 provide:
(7) If at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed an offence to which this section applies, other than the offence to which the detention relates and the member of the Garda Síochána then in charge of the Garda Síochána station has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of that other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained.” 41. For a number of reasons, I cannot accept that the different statutes should be treated as being in pari materia. This is not a case of a single body of legislation dealing with one subject. The Oireachtas has legislated separately for the detention of persons suspected of having committed different types of offences. While there are many similarities, there are also differences. Each of the provisions deals with a different type of offence; each provides separately for a period or periods of detention, some similar, some different; in the case of s. 30 of the Act of 1939, the opinion of the arresting garda alone is sufficient to justify both arrest and detention, whereas, in the case of the other three provisions, the opinion of the member in charge is required; officers of different rank, whether inspector, superintendent or chief superintendent are required to either to authorise or extend the period. It does not appear to me that the principle of interpretation of provisions in pari material applies. The Oireachtas did not enact a single piece of legislation dealing with detention of suspects. It legislated separately for detention on suspicion of having committed different types of offence. It did not, it seems to me, intend that the provisions of one Act should be read into the other. 42. I do not, in particular, accept that the Court should read provisions of other statutes dealing with the detention of suspected persons into the Offences against the State Act. 43. I would answer the question referred by saying that the Special Criminal Court was correct in its interpretation of s. 30(3A) of the Offences against the State Act 1939 as amended by s. 21 of the Criminal Justice (Amendment) Act 2009.
1. Introduction 1.2 The defendant/respondent ("Mr. C.") was arrested on suspicion of membership of an illegal organisation viz the I.R.A. His arrest followed from a search of his home on the 11th September, 2010, which commenced at a time when he was not present but continued after his return. An electrical grinder and ammonium nitrate were found in a shed at the side of the house.
1.3 At a point during his custody, Mr. C. was informed that the questioning would turn from issues concerning membership to the explosives which had been found at his home. At a subsequent stage, he admitted responsibility for those items. Evidence of that admission formed an essential part of the prosecution case at his subsequent trial in which he was charged only with possession of explosives.
1.4 That trial took place before the Special Criminal Court which came to the view that the continued detention of Mr. C., subsequent to the change in questioning from interrogation related to a possible membership of the I.R.A. to one which related to alleged possession of explosives, was unlawful so that the admissions made occurred at a time when Mr. C. was in unlawful custody. While it will be necessary to consider the legal basis for that finding in some detail, the substance of the view formed by the Special Criminal Court was that s. 30(3A) of the Offences Against the State Act 1939 ("the 1939 Act"), as inserted by s. 21 of the Criminal Justice (Amendment) Act 2009 ("subsection 3A") provided for a mandatory procedure which was to be followed when someone was to be questioned in respect of an offence other than the one for which they were originally arrested. It had been common case at Mr. C.'s trial that the relevant procedure provided for in subsection 3A had not been followed. The issue was as to whether subsection 3A actually applied. In the view of the Special Criminal Court, subsection 3A did apply with the consequence that Mr. C.'s continuing custody after there had been a change in the focus of his questioning, but in the absence of the procedures under subsection 3A having been complied with, was unlawful. It further followed that the admissions made by him after that time were inadmissible and an acquittal inevitably followed.
1.5 The prosecutor/appellant ("the D.P.P.") has referred a question of law to this Court under s. 34 of the Criminal Procedure Act 1967, which question is set out in a notice of reference of question of law dated the 21st August, 2012. Such a reference is, of course, under the terms of the relevant legislation, without prejudice to the acquittal of Mr. C. The only issue which this Court has, therefore, to address is the question of law so referred. That question concerns the manner in which the Special Criminal Court interpreted subsection 3A. I, therefore, turn to that reference and the subsection. 2. The Reference, the Subsection and the Issue AND WHEREAS the admissibility of a confession (and the prosecution case) stood to be determined upon the Special Criminal Court's construction of Section 30 (3A) of the Offences Against the State Act, 1939 as inserted by Section 21 of the Criminal Justice (Amendment) Act, 2009 which provides
(a) The member of the Garda Síochána then in charge of the Garda station, or
(b) (Not applicable) AND WHEREAS the Defendant had been lawfully arrested on suspicion of membership of an unlawful organisation and the Special Criminal Court holding that the said suspicion still subsisted at the time he was interrogated in relation to the said offence of unlawful possession of explosives.
AND WHEREAS the prosecution submitted that the provisions of the said Section 30 (3A) only arose when the original suspicion justifying arrest and detention had dissipated.
AND WHEREAS the Special Criminal Court ruled that the provisions of the said subsection applied and as "there was no evidence from the member in charge relating to "reasonable grounds for believing" as referred to in the section "that the continued detention of the accused for the purpose of questioning him in relation to offences other than membership of an unlawful organisation and his questioning in relation to such other offences was unlawful.
AND THERE being no other evidence the Court directed an acquittal of the Defendant. The Director of Public Prosecutions pursuant to Section 34 of the Criminal Procedure Act, 1967 and without prejudice to the verdict, now refers the following question of law to the Supreme Court:
2.3 In the context of subsection 3A, and its construction as a whole, it is appropriate to add that subsection 3A(b) allows, as an alternative to the member in charge, the relevant opinion to be formed, where a suspect is detained other than in a Garda Síochána station, by an officer not below the rank of inspector who is not investigating the original offence. That provision had no relevance to the facts of this case because Mr. C. was detained in a garda station. However, it is of some relevance to note that subsection 3A provides, in different circumstances, for a different specified senior member of An Garda Síochána to form the necessary opinion. Subsection 3A thus allows continued detention where one or other of the members of An Garda Síochána specified at paras. (a) or (b) has reasonable grounds for believing that the continued detention of the relevant suspect is necessary for the proper investigation of what is called an "other offence" (which is defined as an offence other than the one to which the suspect's detention relates). Subsection 3A provides that where a member of An Garda Síochána reasonably suspects a person in detention of having committed such an other offence, and where the specified senior garda forms the belief that continued detention of the suspect is necessary for the proper investigation of that other offence, detention may continue as if the other offence "was the offence for which the person was originally detained" subject to limitations to ensure that the system is not abused by being used to extend the overall period of detention.
2.4 There can be little doubt as to how that section works in a straightforward case. A suspect is arrested on suspicion of having committed one scheduled offence. In the ordinary way, there would clearly be an obligation on the arresting gardaí to release that person if, for whatever reason, they no longer had a suspicion that the suspect had committed the offence for which the arrest occurred. However, if, in the course of the investigation, the arresting gardaí, while coming to the view that there were no longer grounds for suspecting that the suspect committed the offence for which he was originally detained, nonetheless had reasonable grounds for suspecting the individual concerned in respect of another scheduled offence, then the machinery of obtaining the approval of the specified garda under subsection 3A must be complied with. Thus, in substance, the detention can be, as it were, transferred from the original offence in respect of which the arrest occurred to a new or "other" offence. Such a "transfer" can, of course, only occur if a senior specified garda has reasonable grounds for the necessary opinion in accordance with the terms of subsection 3A.
2.5 However, the case made on behalf of the D.P.P., both before the Special Criminal Court and before this Court, is that a different situation pertains where suspicion in respect of the new or "other" offence is not in substitution for a suspicion relating to the original offence but rather is in addition to the suspicion in respect of the earlier offence.
2.6 In that potential distinction lies the dispute between the parties to this case. Counsel for the D.P.P. argues that subsection 3A has no application to a case where the suspect remains the subject of a reasonable belief of having committed the original offence for which the suspect was arrested but where a member of An Garda Síochána in addition has a reasonable belief in respect of the commission of a second offence. Counsel for the D.P.P. argues that, in those circumstances, given that the original basis for the arrest still subsists, it is unnecessary to rely on the provisions of subsection 3A and that, therefore, the subsection has no application.
2.7 Counsel for Mr. C. argues that, on a proper construction of subsection 3A, same applies to any case where it is desired to continue detention in respect of another offence so that the relevant procedures must be complied with. In substance, counsel for Mr. C. argues that the regime provided for in subsection 3A is mandatory and does not, on its proper construction, permit, as counsel for the D.P.P. argued, an alternative justification for continued detention where suspicion in respect of an offence other than the original arises. Rather, it is argued, the procedure specified in subsection 3A (being that a specified senior garda has reasonable grounds for the necessary opinion) applies in any case where a person is suspected of having committed an "other offence".
2.8 As was pointed out by counsel for Mr. C. in the written submissions filed, there are, essentially, two radically different interpretations of the application of subsection 3A argued before the Court. The issue is very net but, nonetheless, very important for it touches on the circumstances in which an individual may lawfully be deprived of their freedom. 3. Discussion 3.2 While there is a lot of detail to be found in the provisions of subsection 3A, the operative provision, in my view, is that, if the necessary conditions are met, the relevant person "may continue to be detained" (emphasis added). The subsection is, therefore, permissive, rather than mandatory in its terms. It allows continued detention in certain circumstances. The subsection is not structured in a way in which there is an express requirement that, in all cases where it is desired to conduct questioning in respect of an offence other than the offence for which the suspect was arrested, a senior specified garda must have reasonable grounds for the necessary opinion in accordance with the subsection. Rather the subsection permits continued detention on suspicion of a second or "other offence" when the appropriate opinion of that specified garda has been reasonably formed.
3.3 The backdrop to the subsection must be to consider what the legal position was before its enactment. A person could be arrested and detained under s. 30 of the 1939 Act for 24 or 48 hours if suspected of a scheduled offence. It must be taken to be implied into that regime that the justification for detention must remain in being or else the suspect must be released. If relevant members of An Garda Síochána no longer held a bona fide suspicion that the suspect had committed the offence in respect of which he was originally arrested, then it seems to me that there would, ordinarily, be a clear duty to release. While the section speaks of detention for 24 hours (extendable by a senior garda to 48 hours), it could not be interpreted as permitting the full period of detention to be justified if the underlying basis for the arrest in the first place had disappeared.
3.4 This much is clear from D.P.P. v. Howley [1989] I.L.R.M. 629, where, at p. 634, the following is stated:-
3.5 I am satisfied, therefore, that the position which must be taken to have pertained immediately before subsection 3A was inserted into the 1939 Act by s. 21 of the Criminal Justice (Amendment) Act 2009 was that a suspect was entitled to be released as soon as the suspicion which justified an arrest in the first place has disappeared. I cannot see that there would have been any basis, provided that the original suspicion continued to be bona fide held, why the suspect could not be asked, during the relevant period of detention, questions about other potential offences. Whether the original suspicion continued to be bona fide held would, of course, be a matter of fact for the court of trial. Whether lengthy questioning which related solely to some other offence might give rise to an inference that the suspicion in respect of the offence for which the suspect was arrested either was never held or, if once held, was no longer held, is a matter of inference also for the court of trial. However, at the level of principle, and provided that the court of trial was satisfied that a bona fide suspicion in respect of the original offence continued to be held, then questioning in respect of other offences would not, it seems to me, have rendered the custody of the suspect in question unlawful in any way. It should be recalled that the reference from the Special Criminal Court in this case expressly records the view of that court that the suspicion of membership of the IRA (being the offence for which Mr. C. was originally arrested) "still subsisted at the time he was interrogated in relation to the said offence of unlawful possession of explosives".
3.6 What then can it be said that subsection 3A was designed to deal with? It seems to me to be clear from the permissive nature of subsection 3A that it was designed to permit continued detention in cases where continued detention would not, otherwise, be lawful. In other words, it was designed to permit detention in respect of the second or "other" offence when the suspicion in respect of the first or original offence had disappeared, thus requiring, if subsection 3A were not there, the immediate release of the suspect concerned.
3.7 On that basis it seems to me that the purpose of subsection 3A is to permit, provided that the necessary procedures specified in the subsection are met, the continued detention of the suspect in question notwithstanding the disappearance of the suspicion which justified the original arrest. I am strengthened in that view by the fact that the continued detention is described in the subsection as being in relation to the "new" offence "as if that offence was the offence for which the person was originally detained". In other words, after the procedures specified in subsection 3A are complied with, the suspect is no longer detained in relation to the original offence but is detained, in substitution therefor, in respect of the new or "other" offence. Such a situation does not arise where suspicion in respect of the first or original offence bona fide continues.
3.8 Likewise, the language of the subsection, if it had been intended to be mandatory and cover all cases including those where the original suspicion continued, would, in my view, have been different. The subsection could easily have said that, in any circumstances where part of the reason for the continued detention of a suspect involved a suspicion of an offence other than the one in respect of which the suspect was originally arrested, the procedures specified in subsection 3A are to apply. However, that is not the language used. The language merely permits continued detention if the procedures are followed. It does not require those procedures to be followed in all cases. The subsection is, in my view, permissive because it is unnecessary in cases where continued detention would, in any event, have been lawful.
3.9 It was submitted on behalf of Mr. C. that the construction sought to be placed on subsection 3A by the D.P.P. would suggest that subsection 3A did not really alter the law as it existed, under Howley, prior to the subsection coming into effect. However, for the reasons which I have sought to analyse, I am not satisfied that such is a correct analysis of the situation. Under Howley, it is clear that questioning for an offence other than the one in respect of which the suspect was arrested can occur but that the admissibility of any evidence thereby obtained is dependent on the suspect remaining in lawful custody which is, in turn, dependent on a bona fide suspicion remaining in being in respect of the offence in respect of which the accused was originally arrested. Subsection 3A has, therefore, a real effect in changing the law by permitting, in cases where the suspicion which justified the original arrest has disappeared, the suspect to remain in lawful custody, provided the procedures required by subsection 3A are met, for further questioning in respect of a new or other offence.
3.10 Likewise, counsel for Mr. C. argued that the construction sought to be placed on subsection 3A by the D.P.P. required reading something into the subsection which course of action ought not, it was argued, be adopted in respect of a penal statute. However, again for the reasons which I have sought to analyse, I am not satisfied that it is necessary to read anything into the subsection to give it the meaning contended for by counsel for the D.P.P. As pointed out, the section is merely permissive rather than mandatory. The subsection speaks of the custody, in substance, transferring from one which is in relation to the original offence for which the arrest occurred to one which is in relation to the new or other offence. On that basis I am satisfied that the natural or ordinary meaning of the subsection is as contended for on behalf of the D.P.P.
3.11 For those reasons I am satisfied that the argument put forward by counsel on behalf of the D.P.P. is correct and that the Special Criminal Court was incorrect in the approach which it adopted to the lawfulness of the detention of Mr. C. 4. Conclusions | ||||||||||||||||||||