THE SUPREME COURT
[Appeal No: 258/13]
Denham C.J.
Hardiman J.
Clarke J.
Dunne J.
Charleton J.
Between/
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
COLM ROCHE
Respondent
Judgment of Mr. Justice Hardiman delivered the 23rd day of July, 2015.
1. This is the Director’s appeal pursuant to s.34 of the Criminal Procedure Act 1967 against the acquittal of Colm Roche at his trial before the Tipperary Circuit Criminal Court (His Honour Judge Thomas Teehan and a jury) in November, 2001. The respondent, Mr. Colm Roche, was acquitted on the only two counts of an indictment preferred against him. They alleged possession of cannabis resin contrary to s.3 of the Misuse of Drugs Act 1977, as amended and possession of cannabis for purposes of supply contrary to s.15 of the same Act.
2. This appeal is without prejudice to the acquittal of Mr. Roche.
3. I wish to make two points before entering into the substance of the case. The first is the question of law which comes before the Court was drafted by the prosecution with no input from the defence. This is in accordance with the statute. The question posed is this:
“Where a person has been arrested and detained at a garda station for an initial period not exceeding six hours, pursuant to the provisions of s.4(2) of the Criminal Justice Act 1984, does the fact that no evidence was given that the member-in-charge in the station relieving another member-in-charge… considered whether
(a) There were reasonable grounds for the original detention,
or
(b) There were reasonable grounds for continuing that detention, of itself render the continued detention of that person unlawful.
Despite the way in which this question is phrased, it appears from an examination of the transcript that no issue was at any time raised by the defence as to the legality of Mr. Roche’s original detention once prima facie evidence of it was given. A Garda Brendan O’Halloran, who was the Member-in-Charge at Clonmel Garda Station at 1pm on the 24th December, 2007 gave evidence that he authorised the detention of Mr. Roche, at the request of a Garda Power, at 1.10pm on that day. This was not challenged by the defence. Nor was it ever suggested that the reasonableness of Garda O’Halloran’s initial decision, made at 1.10pm, could be at all affected by what the Member who relieved him as Member-in-Charge at 2pm did or failed to do.
4. It is unfortunate and misleading that the question was phrased in that way. It tends to give the impression that the case raises a point of general application, so that the validity of every detention under s.4 of the 1984 Act might be invalidated by what a new Member-in-Charge of the Garda Station did or failed to do. This is simply not so. The question as phrased might suggest that the case could “open the floodgates”. In reality there is no prospect of this and I do not know why the question was phrased in such a way as to suggest that there was.
5. The second preliminary point I wish to make relates to the summary of the relevant Sections of the Criminal Justice Act 1984 contained in the judgment of Mr. Justice Charleton in this case. Everything Mr. Justice Charleton says in this regard is perfectly true but I am afraid that, if taken literally, the material might create a false impression, in particular a false impression of how the Act operates in practice.
6. The novel feature of the Act of 1984 is that, for the first time outside the context of Offences against the State, it provided that a person suspected of a wide variety of offences could be detained, not for the purpose of being brought before a court as had previously been the case, but for the purpose of questioning. Moreover, it provided that this detention could take place on the authority of a garda known as the “Member-in-Charge”. It is perfectly true, as Mr. Justice Charleton says at para. 14:
“Section 4(2) of the Act of 1984 provides that an arrested person ‘may be taken to and detained in a Garda Síochána station’. Detention for the period established in the legislation may be allowed only ‘if the member of the Garda Síochána in charge of the station to which the person is taken on arrest has at the time of the person’s arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence’.”
7. However, the statement that a person may be detained “only” in the circumstances mentioned is somewhat qualified by the mundane fact that I am unaware of any case in the more than thirty years for which the Section has been operated in which a Member of the Garda Síochána in charge of the station has refused the application of another member of An Garda Síochána to detain a person. My own experience at the Bar and on the Bench does not extend to such a case, and I have never heard of one. In the case of DPP v. Birney [2007] 1 I.R. 377 some difficulty was posed, in the view of some gardaí, by the fact that a Member-in-Charge meticulously processed a number of arrested persons individually. That is the only occasion of which I have been aware of the actions of a Member-in-Charge conflicting with the views of other gardaí. But even in that case, as the Court of Criminal Appeal found, there was no refusal to detain a person. I therefore feel that the precisely correct statements of Mr. Justice Charleton as to the content of the statute have to be read in light of the fact that there is no known instance of a Member-in-Charge of a garda station refusing to detain a citizen when another garda requests it.
8. Secondly, it is perfectly true, as Mr. Justice Charleton says that:
“The Act of 1984 made provision for the first time for statutory regulations to be enacted for the protection of members of An Garda Síochána against unwarranted allegations of brutality, oppression, and for the establishment of a Code of Conduct as to how prisoners should be correctly and humanely treated.”
This is perfectly true, but I do not believe it was the principal purpose of the statute, which was to provide for detention for questioning. Moreover, while regulations for the protection of persons in custody, and for their correct and humane treatment are certainly provided for in the Act, the Act also provides:
“7(1) The Minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations.
(2) The regulations shall include provision for the assignment of An Garda Síochána in charge of a garda síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice or the responsibilities and duties of any other member of the Garda Síochána.
(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement by him”.
Thus, while it is perfectly true to say that the Act mandates the making of regulations for the protection of persons in custody, those regulations are absolutely extraordinary delegated legislation creating obligations for the breach of which there is no civil or criminal remedy or penalty and expressly providing for the admissibility in evidence of material obtained in breach of regulations, or in the context of a breach of regulations at a Court’s discretion. This is toothless legislation. It must be very clear that if legislation or delegated legislation which creates or defines criminal offences (as in the case in much of the drugs legislation) contained similar immunities for breach of the law or regulations, they would be absolutely unenforceable. This is the position in the case of the 1987 Regulations, relating to the Treatment of Persons in Custody.
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This is an area of high constitutional significance. Article 40.4.1 provides that:
“No citizen shall be deprived of his personal liberty save in accordance with law”.
When Mr. Roche was arrested at 12.20pm on Christmas Eve, 2007, he was thereby immediately deprived of his personal liberty. This deprivation would be unconstitutional unless it was, and continued to be, “in accordance with
law”.
Moreover, by Article 40.3.1:
“The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
These rights, in the case of Mr. Roche, extend to his right to liberty. By statutory arrangement, and statutory instrument made under the 1984 Act the responsibility of overseeing the detention of Mr. Roche and of ensuring that it was in accordance with the law was delegated to Garda Downey. His very brief account of his discharge of this onerous stewardship will be given below.
As will be seen in the summary of arguments below, the learned trial judge was invited to exercise the discretion which (the prosecution said) was conferred on him by s.7(3) of the Act which is set out above. The exercise of a similar discretion has been considered, somewhat controversially, in this Court in the recent case of DPP v. J.C. (No. 1).
In the judgment of Clarke J. at para. 4.23 he says:
“These matters are addressed in the judgment of Hardiman J. Likewise, I acknowledge that there may well have been a tendency, in cases of illegally, as opposed to unconstitutionally, obtained evidence, for courts to tend to exercise their adjudicative role in favour of the admission of such evidence.”
With great respect there was a great deal more than a “tendency” to exercise the discretion in that way. As mentioned in my judgment in that case I am aware of only one instance where the discretion was exercised in favour of exclusion, and that was, by coincidence, a case where all of the defendants, the parties arguing for exclusion, were all themselves members of the gardaí.
This, however, is a case where a discretion was in fact exercised in favour of an ordinary citizen and the evidence thus excluded. I would be more than sorry to see this exercise of discretion overruled in a case shortly following that of J.C. I do not consider that this Court has power to interfere with an exercise of judicial discretion of this sort, on the evidence which was heard by His Honour Judge Teehan.
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9. What happened in this case emerges clearly from the transcript of the hearing of the 3rd November, 2011. Defending counsel, Mr. O’Shea informed the judge that “I’m going to put the State on proof of certain matters” (p.5). These included the detention of the accused under the 1984 Act. During this detention certain admissions were allegedly made. Accordingly, the admissibility of these alleged verbal admissions was in issue.
The prosecutor intimated that “I am going to need some time then to...”.
At p.8 Mr. O’Shea called on the State “to prove the arrest and the search and the detention and the memo”.
10. On foot of that requirement various garda witnesses were called, gave evidence and were cross-examined in certain instances. As noted above the original detaining Member-in-Charge, Garda O’Halloran was not challenged on the evidence he gave about the decision to detain (pp 39/40).
11. A Garda John Downey then gave evidence and said that he commenced duty as Member-in-Charge of the Garda Station on the 24th December, 2007 at 2pm. He said:
“I took up duty as Station Orderly and Member-in-Charge at Clonmel Garda Station. This is in accordance with s.4 of the Criminal Justice Act 1984.” (p.41)
He continued:
“… on the commencement of duty, relieving Garda Brendan O’Halloran, there was a prisoner in custody, namely Colm Roche of [address] having been arrested earlier that day by Garda Power for an alleged breech of s.15 of the Misuse of Drugs Act… I made relevant entries in relation to my dealings with Mr. Roche. And those dealings were at 2.25pm. The prisoner was taken by Sergeant Hennebry and Detective Garda Quinlan to be photographed and fingerprinted… at 2.47pm the prisoner was returned to cell no.4… at 3.15pm the prisoner was taken to the Interview Room with Detective Garda O’Gorman and Garda Power… at 3.34pm I visited the prisoner in Interview Room and made no requests or complaints were made of me (sic). At 4.05pm the prisoner was returned to the cell. Garda Power handed me three video cassettes one of which was sealed, and at 4.26pm the prisoner was released from garda custody, having no complaints. Mr. Roche signed the custody record to this effect.”
12. There was no cross-examination of this garda.
13. In that state of the evidence Mr. O’Shea cited Professor Dermot Walsh’s book on Criminal Procedure (p.45/46) and particularly the proposition:
“And a Member-in-Charge at the station must have reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the crime.”
Mr. O’Shea submitted, on that basis “that there is a requirement of ongoing appraisal [by] the Member-in-Charge and ongoing enquiry by the Member-in-Charge and the Section itself sets out that… if there are no grounds in detaining him further he must be released forthwith. He referred to s.4(4) of the Act.
14. It should be noted that Garda Downey not only gave no evidence other than that summarised above, but did not produce or prove the custody record relating to Mr. Roche.
15. Prosecuting counsel, Mr. Cody said:
“I’m not aware of any authority in which a Member-in-Charge taking up duty from the admitting Member-in-Charge is required to make the inquiries that Mr. O’Shea suggests.”
Mr. Cody then referred to the evidence of Garda Downey to the effect that he was informed by Garda O’Halloran that there was a prisoner in custody, and for what. He continued:
“So even if, and I suggest there is isn’t any requirement on the Member-in-Charge to engage in this exercise… in any event he has received information, Judge, which enables him to take up duty and continue with the detention of Mr. Roche under the Section.”
He then proceeded to rely on s.7 subsection 3, of the Act which has been set out above, and which, State counsel submitted, created a discretion to admit the evidence despite any shortcomings in the treatment of a prisoner.
16. In his judgment, the learned trial judge rejected the challenge to the original arrest and search which led to Mr. Roche being brought to the Garda Station. He continued (p.54):
“With regard to the second application in relation to the detention, Garda O’Halloran was the Member-in-Charge when Garda Power brought the prisoner, Mr. Roche, to the station and it seems to me that the proper procedures were followed as between them and it seems to me also that Garda O’Halloran as the Member-in-Charge in deciding to detain Mr. Roche under s.4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary for that purpose.”
17. Accordingly, it can be seen that the learned trial judge also rejected the challenge to the decision to detain Mr. Roche when he was brought to the Garda Station. He then continued:
“Various other matters then followed and at 2 o’clock he [Garda O’Halloran] was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during the time that he was relieving his colleague he did not say anything about satisfying himself of the reasonableness of the continuing detention of Mr. Roche. I am quite certain that if he had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so. It seems to me that this is not a situation which is covered by s.7(3) of the 1984 Act. Section 7(3) gives a discretion to the Court to admit evidence notwithstanding breach of regulations made under the Section. Now, but this… what is complained of here by the defence is not a breach of regulations but a breach of the actual Section and a criminal provision has to be construed strictly and with considerable hesitation I must accede to the application in this regard and I must rule that the continued detention passed 2 o’clock on the day was unlawful and I think it flows from that… it must be excluded.” (sic)
18. The office of “Member-in-Charge” is defined by the Regulations referred to above:
“4(1) In these Regulations ‘Member-in-Charge’ means the member who is in charge of a station at a time when the Member-in-Charge of a station is required to do anything or cause anything to be done pursuant to these Regulations.”
19. In this case, Garda Downey gave unchallenged evidence to the effect that he was the Member-in-Charge from 2pm on the 24th December, 2007 and that he took over from Garda O’Halloran who had previously acted in that capacity.
20. By Regulation 5(1):
“The Member-in-Charge will be responsible for overseeing the application of these Regulations in relation to persons in custody in the station and for that purpose shall visit them from time to time and make any necessary enquiries.”
It may be important to note that by Regulation 3(2):
“There shall be no unnecessary delay in dealing with persons in custody.”
This provision is absolutely essential to any constitutional provision for detention for questioning. Such a provision is an interference with the right of liberty which of course is a constitutional and not merely a legal right. Where a statute such as the 1984 Act permits detention other than for the purpose of trial or judicially imposed imprisonment, the procedural safeguards pertaining to detainees alone give practical effect and protection to the constitutional right to liberty. See Article 40.4.1 of the Constitution. If a person could be detained for questioning and then simply left for an indefinite period in the intimidating and often unsanitary circumstances of a cell in a garda station, the right to liberty would be set at nought. Therefore it is essential that the Regulations provide, as they do, that “there shall be no unnecessary delay in dealing with persons in custody”.
21. In this particular case it is to be noted that the respondent, Mr. Roche, having been arrested at 12.20pm, and detained in a garda station since 1.10pm was not questioned until 3.15pm. One would not like to think that this was for some trivial reason, such as to allow members of An Garda Síochána to have their lunch while the respondent cooled his heels in a cell for most of the time. But one will never know whether this is so or not because, on the evidence, the member of the Garda Síochána in charge of the station made no enquiry at all about Mr. Roche’s detention or why he was left for two hours and fifty-five minutes from his arrest before being questioned. We will never know this because the member of the Garda Síochána in charge of the station from 2 o’clock on Christmas Eve, 2007, never addressed his mind to it, as far as the evidence goes.
22. It must be borne in mind that these Regulations are made under statutory authority, s.7 of the 1994 Act. This requires the Minister to make Regulations “providing for the treatment of persons in custody in Garda Síochána stations and assigning to some member of An Garda Síochána “responsibility for overseeing the application of the Regulations…”.
23. In my view, that being so, there is an obligation on the State to prove compliance with the statutory duty and specifically to establish that there was no unnecessary delay. In my view this is not merely a regulatory matter but a matter of statutory and indeed constitutional significance.
24. If Garda Downey had turned his mind to the question of the necessity for the continued detention of Mr. Roche, it might have been quite easily established that such detention was necessary. As the learned trial judge said, a short conversation might have been all that was required. But on the state of the evidence in this case Garda Downey did not turn his mind at all to the question of whether there was unnecessary delay, or whether the detention continued to be warranted.
In my view, the prosecution is required to prove that the Member-in-Charge of the Garda Station turned his attention to these matters. In DPP v. Conroy [1986] I.R. 460 the question of whether a prisoner was in lawful detention when something of evidential significant transpired was simply not ruled upon by the trial judge. Finlay C.J. said at p. 474:
“It would appear from the transcript that the learned trial judge did not rule on this question, largely on the basis that upon enquiring as to what the issue of fact which counsel on behalf of the accused was seeking to have put before the jury was, he was informed that the accused would if he gave evidence, swear that he was under the impression that he could not leave the garda station after he had been there for a while. The judge appeared to rule that this was not evidence of fact, it would be of no value and, eventually, ruled that there was not evidence to show that there was an issue of fact for determination of the type which was dealt with in the Lynch case [1982] 1 I.R. 64. It would appear to me that upon an issue being raised by counsel on behalf of the accused as to whether his client was at, and prior to, the time of making a confession, in custody. The onus of proof is on the State to establish either that his custody was legal or that he was not in custody and that the judge should ordinarily permit evidence to be adduced on the issue.”
(Emphasis added)
Mr. Justice Griffin and Mr. Justice Hederman agreed with the judgment of the Chief Justice in Conroy.
25. It appears to me from dicta in the Article 26 reference In Re The Emergency Powers Bill [1977] I.R. 159 and in DPP (Lenihan) v. McGuire [1996] 3 I.R. 586 the 1987 Custody Regulations are designed to provide a procedural safeguard to what is of its nature a constitutional right. Therefore, where the Constitution can be invoked regarding deprivation of liberty in the form of a detention which does not observe the statutory procedural safeguards, it appears to me that the legality of the detention itself is called into question.
26. The Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (SI No. 119 of 1987) are designed to provide a procedural safeguard to what is a constitutional right, the right to liberty. If the Regulations were not seen in this light then there would be no attempt to discharge the State’s obligation under Article 40.3.1 to vindicate the right of Mr. Roche to liberty. Therefore, the Constitution can be invoked regarding deprivation of liberty in the context of the non-observance, or non-demonstrated observance of an obligation protective of Mr. Roche’s constitutional rights; and any evidence obtained in such circumstances is a breach of his constitutional right and not merely a question of illegality.
As to the position of the Regulations themselves, and of the Member-in-Charge, I wish to quote from the judgment of Kelly J. in DPP (Lenihan) v. Maguire) [1996] 3 I.R. 586 at 593:
“The Criminal Justice Act 1984 is an important enactment dealing, inter alia, with the safeguarding of rights of persons who are in the custody of the garda. Section 7 of the Act of 1984 creates a mandatory obligation on the Minister to make Regulations providing for the treatment of persons in custody in garda stations. The second subsection of that Section requires that the Regulations include a provision for the assignment to the Member of the Garda Síochána in charge of a garda station… of responsibility for overseeing the application of the Regulations made at that station. This is an important responsibility placed on the shoulders of such a person.”
I agree with this. It is in my view part of the proofs of a prosecution which relies in whole or in part on evidential material developed during the period when a person is deprived of his liberty to demonstrate such deprivation was lawful and was in accordance with the Regulations laid down for the treatment of people who have been deprived of their liberty for investigative purposes. If this is not done then the prosecution are at risk of having the evidential material excluded in the exercise of the learned trial judge’s discretion. This is not a thing that often happens, but it happened in this case.
27. It appears to me to be well established from the Statute and Regulations that the Member-in-Charge of the Garda Station is the person designated, under statutory authority for “overseeing the application of the [Treatment of Persons in Custody] Regulations at that station”. This is a role independent of the criminal investigation which leads to the person being in custody.
28. This is obviously an important role. A person in custody is unable to look after his own interests by reason of the very fact of the custody. Apart from that, the unfamiliarity of the surroundings, the intimidating and, as I have said, often unsanitary conditions of a cell in a garda station, may heighten a suspect’s needs for assistance in the validation of his rights.
29. It appears to me that the main statutory features of the detention which require supervision are firstly the requirement that there be no unnecessary delay, that is that a person who is deprived of his liberty and, quite literally, locked up, without having been convicted of any offence and without an immediate intention of bringing him to court, should be held in that way for the shortest time possible. Secondly, the question of whether there is a continuing necessity for his detention must be present to the mind of the Member-in-Charge who must make the necessary enquiries about it. Here there is no evidence that he turned his mind to either of these questions.
30. I am unable to concur in the approach of Mr. Justice Charleton expressed, for example, in para. 21:
“There is nothing to suggest on the evidence in this case that there did not remain reason to continue to suspect, and on reasonable grounds, that Colm Roche had committed the offence for which he was charged.”
In my view, this approach, expressed by two negatives (“Nothing to suggest… that there did not remain…”) does not adequately reflect the fact that on a voir dire of this sort “the onus of proof is on the prosecution to establish… that his custody was legal”, as Chief Justice Finlay put it in Conroy, cited above. We have not been asked to depart from the authority of that case. This omission is a significant aspect of the present case.
31. The formulation used in the judgment of Mr. Justice Charleton, which I have discussed in the previous paragraph, is consistent only with a view either that the onus of proof is on the defence to establish that something occurred which required the Member-in-Charge’s attention or, alternatively, no onus arose until such time as something developed, the proof of which did not lie on the State. This is equivalent to saying that there is some form of evidential burden on the defendant. I do not accept that this is so, on the authority of Conroy.
Moreover, the view that it is sufficient for the State to succeed that there be “… nothing to suggest on the evidence that there did not remain reason to continue to suspect…” is in my view inconsistent with the recent decision in J.C. (No. 1), cited above. There, at para. 5.1 of his judgment, Mr. Justice Clarke said:
“In any criminal trial the onus rests on the prosecution to prove guilt. It seems to me that, as part of that overall approach, the onus rests on the prosecution to establish the admissibility of any evidence in respect of whose admissibility a legitimate question is raised. The first part of any proper test must, therefore, state that:
‘The onus rests on the prosecution to establish the admissibility of all evidence’.”
32. Mr. Justice Clarke continued, at para. 5.4 of his judgment:
“As part of that obligation it seems to follow that the onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places two separate obligations on the prosecution. The first is to put forward whatever argument or basis it is suggested nonetheless justifies the admission of the relevant evidence. Second, and of equal importance, there must rest on the prosecution an onus to establish any facts necessary to justify such basis. … while that obligation stems principally from the general obligation which lies on the prosecution, it also seems to me to be strengthened by the fact that the accused will, in the vast majority of cases, have little or no knowledge of the circumstances which led to evidence being obtained in circumstances of unconstitutionality…”.
33. This passage, indeed, addressed the basis of my inability to concur in the judgment of Charleton J. I believe that where evidence is developed in circumstances where the defendant is deprived of his liberty, such evidence is admissible only if such deprivation is in accordance with law and with the constitutional rights of the detained person, which continue to subsist except in relation to his immediate entitlement to liberty. It appears to me that in this case, as far as the evidence goes, the Member-in-Charge of the garda station unto whom such significant responsibility is discharged did nothing in particular to ascertain the continuing need for the detention. Moreover, in the context of a detention for a maximum period of six hours he permitted (and may or may not have observed) that two hours and fifty-five minutes elapsed before the prisoner began to be interviewed in custody. I am far from saying that there may not have been good reason for this, but no such reason was adduced in evidence. Nor was the Custody Record produced in evidence. This is a document required to be kept under statutory authority and I can think of no good reason for its non-production.
34. Finally, it must be remembered that the learned trial judge, in the context outlined above exercised a judicial discretion to exclude the evidence. I am not aware of any basis on which this discretion can properly be reviewed by this Court which, unlike the learned trial judge, did not have the advantage of seeing and hearing the witnesses.
35. I would dismiss the appeal.
Judgment of Mr. Justice Clarke delivered the 23rd July, 2015.
1. Introduction
1.1 It is fair to say that there have been developments in the regime which the law provides in respect of persons arrested for the purposes of investigation over the years. The question which arises in this reference concerns one aspect of that regime. The defendant/respondent (“Mr. Roche”) was acquitted on the only two counts of an indictment which alleged possession of cannabis resin. The prosecutor/applicant (“the D.P.P.”) has referred an issue of law to this Court, without prejudice to that acquittal of Mr. Roche, under s.34 of the Criminal Procedure Act 1967. That section permits the D.P.P. to refer “a question of law” to this Court for determination where an accused is found not guilty on the question of law concerned. While proceedings of this type are sometimes referred to as an appeal without prejudice it is, perhaps, more correct to describe such an application by the D.P.P. as a reference.
1.2 The questions of law which now come before this Court are fully set out in the judgments of Hardiman and Charleton JJ. and it is unnecessary to set them out in detail here. Furthermore, the facts and the issues which were canvassed are likewise fully set out in those other judgments. I have written this separate judgment because I do not fully agree with the position adopted in either of those judgments.
1.3 As appears from the main judgments on this appeal, the key central questions which arise concern the practical operation of the regime which requires that the so-called member in charge of a gárda station keep the validity of the continuing custody of a suspect under review.
2. The Regime
2.1 First, section 4(2) of the Criminal Justice Act 1984 (“the 1984 Act”) requires, in order that the continuing detention of a person for investigative purposes be authorised, that where a person is brought to a gárda station under arrest, the member in charge must have “reasonable grounds for believing that his or her detention is necessary for the proper investigation of” a relevant offence.
2.2 Of particular relevance to the issues which arise in this case are the provisions of subss. (4) and (5) of s.4 of the 1984 Act. Subsection (4) requires that a person be released from custody forthwith (unless there are other grounds for his continued detention) if “there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies…” Subsection (5), in similar vein, provides for release if there are “no longer reasonable grounds for believing that [the suspect’s] detention is necessary for the proper investigation of the offence to which the detention relates…” There are other provisions, which are not relevant to this case, concerning release during a period of detention or the possible conversion of an inquiry into one offence to an inquiry into another offence.
2.3 What is, however, absolutely clear from the provisions of s.4 of the 1984 Act is that there are two continuing requirements which must be in place in order, ordinarily, for the continued detention of a suspect for investigative purposes to be justified in law. First, the suspicion which justified the arrest of the person, being a suspicion that they committed a relevant offence, must continue. Second, the view which the member in charge formed when allowing for the detention of the suspect when brought to the gárda station, to the effect that the detention of the person in question was required for the purposes of a relevant investigation, must also continue. The corollary is also clear. If either of those bases for the continued detention of a suspect disappears (i.e. if either the reasonable suspicion of having committed a relevant offence or the need for detention to aid the investigation of a relevant offence is no longer present) then the suspect must be released unless other provisions of the legislation (which are not relevant for present purposes) arise.
2.4 The core issue of principle on this appeal is as to how practical effect is to be given to the undoubted entitlement of a suspect to be released in the event that one or other of those requirements justifying continued detention disappears. A subsidiary, although closely connected, issue concerns the extent of the evidential burden which rests on the prosecution to establish the continuing validity of custody in the light of those legislative measures. I turn to those questions.
3. The Issues of Principle
3.1 The starting point has to be to note the language of subss. (4) and (5), both of which speak of it being necessary to release a person where there are “no longer reasonable grounds” for suspicion of the person having committed a relevant offence or for it being necessary to continue their detention for relevant investigative purposes. Those subsections do not specify who is to make the decision as to whether reasonable grounds continue to exist for either of the matters concerned. But it would make a nonsense of the clear entitlement of a suspect to be released in circumstances where those reasonable grounds no longer existed if the obligation to assess those issues did not rest on any particular person.
3.2 It seems to me that it follows that the member in charge, being the person who is given the task of ensuring that a suspect who is to be detained for investigative purposes is properly so detained in the first place, must also be the person who is intended, under the legislation, to ensure that a suspect is released where reasonable grounds no longer exist for either of the conditions which underlie a valid continuing detention.
3.3 However, it is important to note the distinction between the language used in subs.(2), on the one hand, and that contained in subss. (4) and (5), on the other. In order, under subs.(2), for detention for investigative purposes to be valid, the member in charge has a positive obligation to have “reasonable grounds” in accordance with the subsection. Thereafter, the obligation to release arises where such reasonable grounds “no longer” exist. There can be no doubt that it is necessary, at the beginning of an investigative detention in a gárda station, for the relevant member in charge to have positively applied his or her mind to the question of whether relevant reasonable grounds exist in order that there be a valid continuing detention. However, it cannot have been that the legislative intention necessarily required a positive obligation on the member in charge to constantly review the situation on a minute by minute basis. On the other hand, if the member in charge had no obligation to consider the question of whether the circumstances justifying detention continued at all, then the right to be released contained in the legislation would hardly be of any value.
3.4 In those circumstances, it seems to me that the obligation on the member in charge is to address the question of whether the necessary basis for continued detention exists whenever the circumstances ought reasonably to lead to a consideration of whether those conditions do, in fact, remain in place. In his judgment, Charleton J. suggests that the duty to order release is “entirely predicated upon the condition of an event happening which triggers either section”. I agree that there must be something to trigger the obligation. However, in my view, the circumstances which may trigger such an obligation may be positive or negative.
3.5 Where there is a development which might lead to a question over whether there are reasonable grounds for believing that the suspect has committed a relevant offence or whether the suspect’s continued detention is necessary for relevant investigative purposes, then there is a clear positive obligation on the member in charge to consider whether the pre-conditions to continued detention remain. However, in my view, there is also an obligation on the member in charge, particularly in the context of subs.(5) and the need that there be continuing reasonable grounds for believing that detention is necessary for investigative purposes, to consider whether that situation can truly be said to continue to exist where nothing much of an investigative nature seems to be happening.
3.6 That is not to say that a suspect is entitled to be released simply because little by way of investigation has taken place. There may well be good reason why certain aspects of an investigation (for example, the questioning of one particular suspect ahead of another) may lead to little action being taken which is relevant to a particular suspect for a period of time even though there may remain good reason to believe that the continued detention of the suspect in question is necessary for relevant investigative purposes.
3.7 Where, therefore, there are either actual developments in the investigation or there is a lack of activity in relation to any aspect of the investigation, which might raise a legitimate question as to whether a suspect’s continuing detention was necessary for such investigative purposes, it seems to me that an obligation is placed on the member in charge to consider whether the necessary reasonable grounds for continued detention subsist.
3.8 That leads to the particular issue which arises in the circumstances of this case which stems from the fact that there was a change of the member in charge during the period of Mr. Roche’s detention.
4. A Change of the Member in charge
4.1 The question which arises under this heading is as to the extent, if any, to which the obligations on the member in charge may differ because there is a change of personnel. Clearly, assuming that detention was regular in the first place, the original member in charge, being the member who was in charge when the suspect was first brought under arrest to the gárda station in question, must be taken to have been satisfied that there were grounds for suspecting the individual concerned of a relevant offence and that there was a reasonable basis for concluding that detention was necessary for the relevant investigation. The obligation on such a member in relation to continued detention has already been addressed. That member must consider whether the relevant reasonable grounds continue to subsist either if there is a positive development which might call that issue into question or if there is inaction on the investigative side which might raise doubts as to whether continued custody is necessary for investigative purposes. But the original member in charge will know why there were grounds for suspecting the individual of a relevant offence in the first place and will also know, at least in very general terms, why the detention of that person was considered necessary for investigative purposes.
4.2 To take a simple example, it might be considered necessary to question an individual but to do so after another individual, also suspected of involvement in the same events, had been questioned to a certain point. To the original member in charge, it might not be a particular surprise in those circumstances if a suspect was not taken for questioning or any other direct investigative action was not taken relative to the suspect in question for a period of time. In those circumstances, a lack of action might raise no legitimate issues from which it might be argued that grounds for continued custody for investigative purposes did not continue.
4.3 On the other hand, a new member in charge may have a greater obligation of inquiry precisely because that new member in charge may not have the same underlying information as would have been available to a predecessor. To turn to the example given earlier, an original member in charge might, on the basis of information obtained when the suspect first came to the station in custody, be aware that it was unlikely that the suspect would be questioned, or that any other aspects of the investigation which required the presence of the suspect would occur, for a reasonable period of time. The fact that nothing had happened for two or three hours might not, in those circumstances, represent a circumstance which would have required the original member in charge to consider whether a continuing necessity of detention for investigative purposes persisted. However, a new member in charge, who was not aware of those underlying facts, might be put on inquiry by a similar delay. Likewise, a new development in the investigation might, in the context of the knowledge of one member in charge, not truly give rise to any questions concerning the continued necessity for detention but might, in the context of a new member in charge with less information, provide the circumstances which would trigger an obligation to at least consider in more detail whether continuing detention was justified. In summary, it seems to me that the sort of circumstances which may require an active consideration by a member in charge of whether continuing detention is justified will depend on all of the circumstances of the case including, importantly, the state of knowledge of the relevant member in charge. This latter factor can, potentially, alter when there is a change of member in charge, for the information available to the new member in charge may not necessarily be the same as that which was available to the original member in charge.
4.4 In that latter context it is, in my view, important to emphasise that the nature of the change of the member in charge and the length of time for which that change is likely to last may themselves be important factors or circumstances. A member of An Gárda Síochána who takes over on a very short term basis as member in charge may not have any circumstances brought to his or her attention which would warrant giving detailed consideration to the justification for continued detention. Likewise, a brief period of inactivity in the investigation during an equally brief period in charge by a substitute member might not, in all the circumstances, give rise to a need to consider whether continued detention for investigative purposes was truly required. On the other hand a member in charge taking over on a permanent basis and not finding any activity for a significant period of time might well be placed in a position where there was an obligation to consider whether investigative detention continued to be justified.
4.5 In my view, it is not, therefore, the case that there is an automatic obligation on a new member in charge to immediately satisfy him or herself as to the continuing validity of any detention. Rather it is the case that the fact that there is a new member in charge (and, therefore, that the level of knowledge which that new member may have may not be the same as that of a predecessor) is one of the circumstances which must be taken into account in determining whether an obligation to consider the validity of continued investigative detention has been triggered.
5. The Circumstances of this Case
5.1 I should first state that I agree with Hardiman J. that, in reality, the first leg of the question referred to this Court, being the issue of whether the “new” member in charge must give evidence as to whether he/she considered that “there were reasonable grounds for the original detention” did not truly arise in this case. There is no basis in law for requiring a new member in charge to second guess or review the decision made by the member in charge who held that position when the suspect was first brought to the gárda station. The validity of the initial detention after arrival at the gárda station depends on the sustainability of the view taken by the member in charge at that time.
5.2 The specific question, which is relevant to this case, is as to whether the fact that there was no evidence that the “new” member in charge considered that there were reasonable grounds for continuing the detention of itself rendered that continuing detention unlawful. That issue comes down, in the main, to one which relates to the evidential burden on the prosecution. For the reasons which I have already sought to analyse I am satisfied that there is an obligation on any member in charge (“new” or “existing”) to review whether continuing detention is required where the circumstances trigger such an obligation. Those circumstances may be more likely to trigger such an obligation in the case of a “new” member in charge. But the real question, for the purposes of this appeal, is as to whether it is necessary for the prosecution, in establishing the lawfulness of the detention of the relevant suspect, to lead evidence to suggest that the circumstances which might have triggered such an obligation had not arisen. In other words, is the simple fact that, as here, the defence had placed the prosecution on proof of the validity of Mr. Roche’s detention sufficient, of itself, to place an obligation on the prosecution to establish that nothing had happened to trigger the obligation of further consideration?
5.3 In my view, there is not a simple yes or no answer to this question. The question of whether an obligation to consider the validity of continued detention had arisen is one which, for the reasons which I have already sought to analyse, requires consideration of all the circumstances of the case. To the extent that some of those circumstances may be favourable to the prosecution’s proposition that a requirement to consider has not been triggered, then there is a clear onus on the prosecution to establish those circumstances. In that context, I agree with the point made by Hardiman J. to the effect that the obligation to establish any facts relevant to the admissibility of evidence is, on the recent authority of the majority of this Court in D.P.P. v. J.C. (No.1) [2015] IESC 31, a burden which must be borne by the prosecution. However, it does not seem to me necessarily to follow that the only way in which that evidence can be given is by the member in charge expressing a view on the issue. If there is evidence which is sufficient to establish that the circumstances in which an obligation to review the justification for continued detention had not been triggered, even if that evidence comes from sources other than the relevant member in charge, then the prosecution will have, in my view, at least on a prima facie basis, established the lawfulness of the detention in question.
5.4 Obviously, it would be much easier if that information were given in evidence by the member in charge concerned. However, in my view it does not have to be given in that way provided that there is adequate evidence before the Court to satisfy the trial judge that the requirement to review the continuing validity of the custody concerned had not been triggered.
5.5 Given that the trial judge did not ask himself that question in that way it is not, in my view, possible to be prescriptive as to how the trial judge, who heard the evidence, might have answered that question had he posed it to himself.
5.6 In that context, I would also agree with the view expressed by Hardiman J. that the assessment which the Court is required to carry out can only be based on matters which were proved in evidence. That flows from the obligation on the prosecution identified in J.C. If there was, for example, apparent inactivity in the investigation for a sufficient period of time to prima facie trigger an obligation to consider whether continued detention for investigative purposes was required, then an evidential burden would fall on the prosecution to explain by evidence why either, in the circumstances of the case, the requirement was not triggered at all, or if the requirement was triggered, that the relevant member in charge applied his or her mind to the question and came to a reasonable conclusion that continued investigative detention was required.
5.7 In the context of this case the fact, as noted by both Hardiman and Charleton JJ., that the custody record was not put in evidence would undoubtedly have raised questions, at a minimum, as to whether there was a sufficient evidential basis for a conclusion that a requirement to positively consider whether investigative detention continued to be justified had been triggered.
5.8 Finally, it might be said that one of the issues which tangentially arises from the argument in this case is as to the extent to which there may be any obligation on the defence to positively put forward a basis for challenging the lawfulness of the detention of an accused as part of an argument as to the admissibility of evidence. There is no doubt that the defence, in this case, did no more than to place the prosecution on proof of the lawfulness of Mr. Roche’s custody. Prior to the evidence on that issue being heard, no specific issue was raised by the defence directed towards the particular point which persuaded the trial judge to exclude the relevant evidence, being the point which is at the heart of this judgment. Nor was such an issue raised in the course of cross-examination of any of the prosecution witnesses. There might, potentially, be a question as to the extent to which it is sufficient for the defence to simply put the prosecution on proof of the lawfulness of relevant custody and then, when the evidence has been heard, raise an issue which amounts to a complaint that the prosecution has failed to prove a negative. However, I would not express any view on that issue in this reference. No debate on the point took place before the trial judge. No significant argument, therefore, took place before this Court at the oral hearing. It would, in those circumstances, not appear to me to be appropriate to attempt to deal with what would be a most important issue in the law of criminal evidence in a case where the issue was barely debated and arises only in a very tangential way.
5.9 Having set out the proper approach which, in my view, a trial judge, faced with an issue such as that which arose in this case should apply to the issue of the admissibility of evidence, I do not think it is either possible or appropriate to attempt to indicate how that issue should have been dealt with by the trial judge in this case. In any event it is possible to address the question of law posed to this Court by the D.P.P. without specifying precisely how the application of that question to the facts of this case should have been dealt with.
5.10 Finally, before turning to how the question posed should be answered, I should indicate that nothing in this judgment touches on the question of whether, even if it were to transpire that evidence was taken during a period when Mr. Roche was in unlawful custody, that evidence might nonetheless be admissible in the light of the principles identified by this Court in J.C. Such an issue was not raised at the trial and was not the subject of any argument before this Court on this appeal. I would leave to a case in which such an issue was fully argued any decision on the proper application of the J.C. principles to an unlawful custody situation such as might arise in a case where the Court was not satisfied that it had been established that proper consideration had been given to the question of whether a suspect could continue to be lawfully detained for investigative purposes. I turn finally to the question of law posed on this appeal.
6. The Question
6.1 I would, therefore, propose that the question be answered by indicating that, where the prosecution is required to establish the validity of the detention of an accused who was detained in a gárda station for investigative purposes, there is an obligation on the prosecution to establish that circumstances which might trigger a requirement to reconsider the validity of the detention of the relevant suspect had not occurred. While meeting that burden may most easily be done by leading appropriate evidence from the relevant member in charge it is open to a trial judge to be satisfied that the burden in question has been met on the basis of any sufficient admissible evidence.
6.2 For the reasons already identified, I am not satisfied that the first part of the question posed properly arises in this case at all. In that regard, I agree with Hardiman J. So far as the second part of the question is concerned, strictly speaking I agree that the question should be answered no. However, that answer is very much subject to the qualification set out in the previous paragraph of this judgment and the commentary leading to that qualification to be found in the judgment as a whole.
Judgment of Mr Justice Charleton delivered on Thursday the 23rd day of July 2015.
1. Following on a trial in the Tipperary Circuit Criminal Court before Judge Thomas Teehan and a jury, in November 2011, the respondent Colm Roche was acquitted on the two counts in an indictment alleging possession of cannabis resin contrary to s.3 of the Misuse of Drugs Act 1977, as amended, and possession for the purpose of supply contrary to s.15 of that Act. Colm Roche was presumed at his trial to be innocent and as that presumption of innocence has not been displaced, nothing herein is to be taken as in any way questioning that.
2. This is an appeal by the Director of Public Prosecutions pursuant to s.34 of the Criminal Procedure Act 1967, as substituted by s.21 of the Criminal Justice Act 2006. It is without prejudice to the acquittal of Colm Roche. That procedure allows the Circuit Criminal Court to state a question of law for the opinion of the Supreme Court. The result is without prejudice to the acquittal of the accused Colm Roche.
3. The question is as follows:
Where a person has been arrested and detained at a garda station for an initial period not exceeding 6 hours pursuant to the provisions of s.4(2) of the Criminal Justice Act 1984, does the fact that no evidence was given that the member in charge of the station relieving another member in charge (including the original detaining member in charge) considered whether -
(a) there were reasonable grounds for the original detention, or
(b) there are reasonable grounds for continuing that detention,
of itself render the continued detention of that person unlawful.
Background
4. For the purpose of considering whether an apparent statement by Colm Roche in garda custody should be admissible in evidence, on the 1st November 2011, the trial judge heard testimony as to the circumstances of his arrest and official detention at Clonmel garda station. It appears that on the 24th of December 2007, gardaí flagged down a car near the Seán Kelly Sports Centre in Carrick-on-Suir. There were four people in the car, including Colm Roche. A search was initiated under s.23 of the Misuse of Drugs Act 1977, as amended. A brown-black rucksack was recovered which was situated on the back seat of the car between where Colm Roche and another passenger were seated. The occupants of the car were told that they were being brought to the garda station for a further search. At the scene, the question had been asked of the occupants as to who owned the bag, to which Colm Roche is supposed to have replied that he did but he didn’t “have a clue what’s in it.” There were also other conversations with the gardaí. The rucksack contained six bars of cannabis resin. Whatever the strength, or otherwise, of these perhaps contested admissions and of other conversations prior to the commencement of a formal interview in garda custody, it was whatever was supposedly said by Colm Roche when detained for questioning that was the focus of a defence application.
5. At the trial, on the defence indicating that there was a challenge to the admissibility of whatever may have been said by Colm Roche in garda custody, in the absence of the jury, the trial judge enquired as to what was the issue that he would have to try. He asked: “Is it the admissibility of evidence?” To which counsel for the defence replied: “I’m calling on the State to prove the arrest and the search and the detention and the memo.”
6. Counsel for the Director of Public Prosecutions then proceeded to call the arresting officer and the member in charge of Clonmel garda station who had authorised the detention of Colm Roche and his replacement. The custody record, which by regulation shortly to be referred to, requires the keeping of a note of the reason for arrest and detention of any prisoner in a garda station and a chronological note relating to checks on the proper treatment in accordance with law of the prisoner, was not produced in evidence on this issue to the trial judge. Nor was a general question asked as to whether the relevant regulations had been abided by in the treatment of the prisoner by all those who had dealings with him. As Hardiman J notes in his judgment, the custody record is kept as a document to be accessed at trials in order to resolve issues as to what may have occurred in custody. Had that record been produced during the course of the testimony by various gardaí, the trial judge would have had before him evidence as to what had happened and evidence as to what may have changed or whether the custody period was being properly used by the investigating gardaí. In the separate judgment of Clarke J the importance of adjudicating on the issues on the appeal in the light of the specific evidence available is emphasised as the primary factor. In that context, the absence of the custody record from the evidence meant that even on the appeal this Court could not have regard to it, despite a request that it be produced. In what follows, therefore, it appears that there was a gap in the evidence as opposed to any question of misconduct by any garda officer dealing with the detention of this prisoner. Perhaps inadvertence to the custody record was understandable in the light of the lack of specificity as to the challenge. Piecing together what happened from the pieces of evidence available to the trial judge without the custody record shows, however, that the concerns raised in the judgment of Clarke J as to inertia, and thus a possible failure to use the time that an arrested person spends in custody in accordance with the purpose of the statutory power, are not applicable to the facts in this case.
7. The car in question was stopped at 12:20 hours on the day in question. At 13:00 hours, the prisoner arrived at the garda station under arrest by Garda Helena Power and the member in charge was Garda Brendan O’Halloran. At 13:04 hours Garda O’Halloran told Colm Roche of his rights, including the right to consult a solicitor, and no legal assistance was sought. At 13:10 hours, the arresting officer explained to the member in charge that after searching the car they had found a bag containing suspected cannabis resin and that, after caution, the prisoner had admitted ownership. Garda O’Halloran granted detention for a period of up to six hours, pursuant to the relevant regulations. At 13:11 hours, a search of Colm Roche yielded “a small notch of hash”. At 13:12 hours, article 5 of the Criminal Justice Act, 1984 (Electronic Recording of Interview) Regulations, 1997 (S.I. No. 74 of 1997) was read to the prisoner. At 13:13 hours he was brought to the doctor’s room for the purposes of a further search. At 13:20 hours he was placed in a cell. At 13:52 hours, a garda superintendent gave permission for the prisoner to be fingerprinted and photographed. Garda O’Halloran’s evidence then continued “I informed the prisoner of the same and at 2pm I informed the member in charge that Colm Roche was detained pursuant to section 4 of the Criminal Justice Act … [and] that was the end of my dealings.” No questions were asked by the defence. Garda Helena Power gave evidence of arresting Colm Roche and of bringing him to the station. As to his detention she stated that Garda O’Halloran “entered all details into the custody record” and that she had a conversation with him outlining her “reasons for requiring him to be detained.” She stated that “drugs had been found in a rucksack in a car and that Colm Roche had claimed ownership of this rucksack and bag.” As a result of that conversation she said that “Garda O’Halloran then detained Colm Roche under section 4 of the Criminal Justice Act.” She was later one of the gardaí who interviewed Colm Roche.
8. At the time when Colm Roche was interviewed, Garda O’Halloran had gone off duty to be replaced as member in charge of Clonmel garda station by Garda John Downey. He gave evidence before the trial judge that he commenced duty at 14:00 hours as “station orderly and member in charge … in accordance with section 4 of the Criminal Justice Act 1984.” Having taken up duty, he said, “there was a prisoner in custody, namely Colm Roche of [address redacted] having been arrested earlier in the day by Garda Power for an alleged breach of section 15 of the Misuse of Drugs Act.” Whether in giving his testimony Garda Downey was reading from the custody record or not, it is clear that the details which followed must have come from that source. He testified to making “relevant entries in relation to” his dealings with the prisoner. These included that at 14:25 hours the prisoner “was taken by Sergeant Hennebry and detective Garda Quinlan to be photographed and fingerprinted.” He next noted that at 14:47 hours, “the prisoner was returned to cell No. 4.” He next noted that at 15:15 hours “the prisoner was taken to the interview room with detective Garda O’Gorman and Garda Power.” He stated that at 15:44 hours he “visited the prisoner in interview room and … no requests or complaints were made of me.” He recorded that at 16:05 hours the prisoner was returned to the cell and that Garda Power handed him “three video cassettes, one of which was sealed.” He then said that at 16:26 hours, “the prisoner was released from Garda custody, having no complaints.” He said that “Mr Roche signed the custody record to this effect.” That concluded the evidence on the issue of lawfulness of custody.
9. In closing submissions, counsel for the defence submitted that a member in charge must have reasonable grounds for believing that the continued detention of a person in custody is necessary for the proper investigation of the crime and that there was no evidence that Garda John Downey had ever applied his mind to that issue.
10. On that question, the trial judge ruled as follows:
With regard to the 2nd application in relation to the detention, Garda O’Halloran was the member in charge when Garda Power brought in the prisoner, Mr Roche, to the station and it seems to me that the proper procedures were followed as between them and it seems to me also that Garda O’Halloran as the member in charge in deciding to detain Mr Roche under section 4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary for that purpose. That detention took place at 10 past 1. Various other matters then followed and then at 2 o’clock he was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during the time that he was relieving his colleague. He did not say anything about satisfying himself of the reasonableness of the continued detention of Mr Roche. I’m quite certain that if he had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so. It seems to me that this is not a situation which is covered by section 3 of the 1984 Act because that section - section 7.3, I should say, section 7.3 gives a discretion to the Court to admit evidence notwithstanding a breach of regulations made under the section. Now, but this - what is complained of here by the defence is not a breach of regulations, but a breach of the actual section and a criminal provision has to be construed strictly and with considerable hesitation then I must accede to the application in this request - in this regard, and I must rule that the continued detention of Mr Roche past 2 o’clock on the day was unlawful and I think it flows from that, I think, it [the statement in Garda custody] must be excluded.
11. It was from this ruling that the Director of Public Prosecutions requested the trial judge to state the issue now before the court.
The Criminal Justice Act 1984
12. The Criminal Justice Act 1984 effected two major reforms to the criminal justice investigation system. Prior to that legislation, where it was suspected that a felony had been committed, a garda could arrest the suspected perpetrator where there were reasonable grounds to support that suspicion. Felonies were not logically classified, so that the theft of a chocolate bar from a shop grounded this arrest power whereas a major fraud on a bank did not. The Act of 1984 made offences which could “under or by virtue of any enactment” be punished “by imprisonment for a term of five years or by a more severe penalty and to attempt to commit any such offence” the standard for arrest powers. Prior to the Act of 1984, persons arrested were regarded as being at the beginning of their imprisonment. Therefore, they had to be brought before a court as soon as was reasonably practicable. The time between arrest and the next proximate sitting of such a court could be used for questioning. That time was, however, variable and unregulated. It depended in part on when someone was arrested, on a Friday as opposed to a Monday morning, for example, and as to when a court might be sitting. Apart from judicial decisions as to the admissibility of confession statements, and apart from the Judges’ Rules, there was nothing to ensure that prisoners in custody were properly treated and questioned in such a way that a statement against interest might be publicly regarded as reliable. The Act of 1984 made provision for the first time for statutory regulations to be enacted for the protection of members of An Garda Síochána against unwarranted allegations of brutality, oppression and for the establishment of a code of conduct as to how prisoners should be correctly and humanely treated. Again for the first time, once there was a reasonable suspicion to ground an arrest, a person could be arrested for the purpose of questioning. The time limit was placed on that questioning of six hours but allowing for an extension pursuant to the direction of a Garda superintendent for a further six hours. Since section 9 of the Criminal Justice Act 2006 was introduced, the period may be extended by a chief superintendent for a further 12 hours; section 4(3). But, there are limits. Such limits also existed under the Offences against the State Act 1939, as amended, for arrest under section 30, but the application of that legislation to offences was as random as the categorisation of crimes as felonies and misdemeanours. Hence, maliciously damaging a window, as well as explosives or firearms offences, enabled detention under that legislation for a period of twenty four hours, capable of being extended to forty eight hours on the direction of a chief superintendent, but murder and rape did not.
13. Central to the protections set up by the Act of 1984, is the regulation of the custody of prisoners through subsidiary legislation. For the purposes of this appeal, the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119/1987) applies. The principles upon which those Regulations are based are set out in the Act of 1984. As originally passed, the Act of 1984 did not allow for the suspension of detention for the purposes of the gardaí making “enquiries or investigations” but amendments were introduced by the Criminal Justice Act 2011 in that regard. These were not in force at the time of this arrest and detention and require no further mention.
14. Section 4(2) of the Act of 1984 provides that an arrested person “may be taken to and detained in a Garda Síochána station”. Detention for the period established in the legislation may be allowed only “if the member of the Garda Síochána in charge of the station to which the person is taken on arrest has at the time of the person’s arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.”
15. This appeal has centred on the meaning of the duties cast on the member in charge by section 4(4) and section 4(5) of the Act of 1984 and these provide:
(4) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith unless his detention is authorised apart from this Act.
(5) if at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for believing that his detention is necessary for the proper investigation of the offence to which the detention relates, he shall, subject to subsection 5A, be released from custody forthwith unless he is charged or caused to be charged with an offence and is brought before a court as soon as may be in connection with such charge or his detention is authorised apart from this Act.
16. As the outline of the legislation above will indicate, there may be cases where the member in charge who originally authorises detention remains in charge of the garda station throughout the whole of that prisoner’s time in custody there. More likely, it is not a leap of the imagination to suppose that people have entitlements pursuant to their work contracts to change shift, or to take a toilet or smoke break or meal break. Hence, it seems that at least every eight hours, and probably more frequently, someone will take over from the original member in charge who has had the relevant conversation with the arresting garda officer and who has authorised the detention. On behalf of Colm Roche it was argued that this subsection cast upon the member in charge who takes over, a duty to inform himself or herself as to the circumstances which originally warranted the arrest and as to the circumstances of the investigation, whereby it continues to be necessary to detain the prisoner for the proper investigation of the offence. That continuing duty, it was asserted on behalf of Colm Roche, was capable of being discharged episodically, so that an interruption for a meal or other temporary substitution would not, without more, disturb the legality of the detention. On behalf of the Director of Public Prosecutions, it was argued that while there was a continuing duty on the member in charge, the subsection did not require evidence that the garda officer taking over from the member in charge, who originally authorised the detention, should have as elaborate a knowledge of the circumstances of the original arrest and the progress of the investigation. If, however, something happened during the course of the detention which meant that the reasonable grounds, whereby the accused was suspected of having committed the offence, evaporated or whereby there were no longer any reasonable grounds for believing that his detention was necessary for the proper investigation of the offence, the member in charge would then have to intervene and require the release of the prisoner. An example of how reasonable grounds for suspecting that the prisoner had committed the offence for which he or she was arrested might evaporate could, counsel for the Director of Public Prosecutions asserted, involve a credible confession by another person; but even in that instance that admission need to be verified or otherwise investigated. Even where the prisoner had made a statement confessing to the crime in question, counsel for the Director of Public Prosecutions asserted that it might not then mean that there were no longer reasonable grounds for believing that the detention was necessary for the proper investigation of the offence. This is because corroborative evidence might need to be looked for or diligent police enquiries might appropriately follow-up on details of the apparent admission.
17. In The People (DPP) v Birney [2007] 1 IR 337, one of the issues before the Court of Criminal Appeal was delay in detaining a number of prisoners who had apparently been validly arrested on suspicion of the commission of the offence of membership of the self-styled Irish Republican Army. It was contended that this delay was contrary to law and rendered the subsequent detention of the prisoners unlawful. In the course of the judgment of the court, Hardiman J emphasised the importance of the member in charge of the garda station having an independent view as to the reasonableness of the suspicion for arresting the accused and of considering whether the detention of arrested persons was, on reasonable grounds, necessary for the further investigation of the offence. At paragraph 58, Hardiman J stated:
This court is of the view that it was clearly the intention of the Oireachtas that the member in charge of a garda station in circumstances where he is asked to detain a prisoner for the purpose of investigation of an offence pursuant to s. 4 should not merely be a rubber stamp. The role of the member in charge involves both a subjective and objective element and subjectively he must believe that the applicant’s detention is necessary and objectively must be satisfied that there are reasonable grounds for his belief. It is clear that the legislature, notwithstanding that s. 4 of the Act of 1984 has to be construed strictly, did intend that a reasonable period would have to be allowed to the member in charge to consider his decision following the arrival at the garda station of the arrested person and in the particular circumstances of this case this court is of the view that there was no departure from the intention of the legislature in the manner in which each of the applicants was dealt with and detained pursuant to s. 4 of the Act of 1984 and that each of the applicants was lawfully detained pursuant to s. 4.
18. Once there is a challenge to the legality of a detention on this ground, the trial judge must be satisfied that the member in charge of the garda station had “an independent bona fide belief that the person who has arrived in custody arrested without warrant, is a person who should be detained by him for a period not exceeding 6 hours from the time of the arrest as a necessary part of the proper investigation of the offence”; per Hederman J in The People (DPP) v O’Toole (Unreported, Court of Criminal Appeal, 20th of July 1990). The centrality of the member in charge in ensuring the proper course of the custody of an arrested person is also emphasised by the Regulations of 1987. Article 3(1) declares that in carrying out their functions such members in charge should “act with due respect for the personal rights of persons in custody and their dignity as human persons” as well as having particular regard to any who have “a physical or mental disability”. One of the abuses which might occur when a person is arrested is deliberate delay, used as a tactic to increase worry and stress. Hence, Article 3(2) forbids “unnecessary delay in dealing with persons in custody.” Persons who are to be members in charge are chosen by the superintendent in charge of a district and they are not to be, “as far as practicable”, involved in either the arrest or the investigation; Article 4(3).
19. One of the most important duties of the member in charge is to keep the custody record under Article 6 of the Regulations of 1987. This requires the recording “as soon as practicable” of such information as pertains to the person in custody. Under Article 7 it is required that record is to be kept of the “date, time and place of arrest and the identity of the arresting member”, of the “time of arrival at the station”, of the “nature of the offence or other matter in respect of which” the arrest took place and of “any relevant particulars relating to … physical or mental condition” of the prisoner. This is all written in the custody record. That form requires that the member in charge of authorising the detention should declare and sign a statement as to the particular prisoner declaring that the member in charge has “reasonable grounds for believing that the detention … is necessary for the proper investigation of the offence(s) in respect of which he/she has been arrested.” Any extension of detention for a further period has also to be particularised, recording the officer’s name and rank and that the officer had “reasonable grounds for believing that such further detention was necessary for the proper investigation of the offence concerned”. The regulations apply to all persons in custody and not simply to those arrested under the Act of 1984. Article 11 provides that an arrested person should have “reasonable access to a solicitor of his choice and be enabled to communicate with” that solicitor privately. The detained person is entitled to information “in ordinary language of the offence or other matter in respect of which” he or she has been arrested; Article 8. Such an arrested person is also entitled to “receive a visit from a relative, friend or other person with an interest” in his or her welfare provided that it would be capable of being properly supervised and not “hinder or delay the investigation of crime.” Article 12 provides that interviews are to be conducted “in a fair and humane manner.” As a matter of practice, the member in charge is to ensure that interviews do not last beyond the 4 hours as specified in Article 12 and, as the evidence before the trial judge indicates, periodic inspections are carried out. One such inspection was carried out in this case in compliance with the Regulations. Article 20 declares that persons in custody should not be subject to “ill-treatment of any kind or the threat of ill-treatment” and that there should be no threats to “the person himself, his family or any other person connected” with him or her. Article 24 provides for the preservation of custody records for “at least 12 months” or until the close of criminal or civil proceedings or the final determination of any complaint that might be made. Provisions as to information are contained in Articles 10 and 16. The proper conduct of personal searches is provided for in Article 17, including that the person to be searched “understands the reason for the search” and there is a duty on the garda conducting the search to pursue it with “due respect for the person being searched.” Provisions as to fingerprinting and photographing are contained in Article 18, and these were clearly followed on the basis of the evidence before the trial judge. The Regulations must be abided by, though a breach of the Regulations may be excused under some circumstances, as set out in s.7(3) and s.27(4) of the Act of 1984. There is no provision allowing for a breach of the Act to be excused. Any proposed exclusion of evidence should detention become unlawful would, as of the present time, be subject to an appropriate analysis in accordance with the decision of the Supreme Court in The People (DPP) v JC [2015] IESC 31.
Awareness
20. Certain aspects may be highlighted as to the awareness that is required of the member in charge of a garda station to which arrested prisoners are brought for the purpose of investigation under section 4 of the Act of 1984. Firstly, it is abundantly clear both under the terms of the legislation itself and on the authorities which have considered the matter, that the member in charge has a role in permitting the detention only of persons who are reasonably believed to be required to be detained for the proper investigation of the offence. Section 4(2) makes it clear that no detention should take place, even though a prisoner may have been arrested with reasonable cause in respect of the commission of an arrestable offence, unless on arrival at the station the member in charge is given reasonable grounds for believing that the detention is necessary. It is to be noted that the subsection confers that duty on “the member of the Garda Síochána in charge of the station to which the person is taken on arrest”. The requisite belief of the member in charge is to be formed “at the time of the person’s arrival at the station” or if the prisoner is actually arrested in the station, then at the time of “his or her arrest in the station”. That is a serious and solemn duty, which was clearly fulfilled on the basis of the evidence before the trial judge.
21. Secondly, there is a continuing supervisory duty over the detention which is exercised by the member in charge or any other member who replaces him as member in charge. That awareness concerns an ongoing obligation to ensure that a person is not continued to be detained in custody where the grounds for suspecting that the prisoner has committed an offence have dissipated. There is nothing to suggest on the evidence in this case that there did not remain reason to continue to suspect, and on reasonable grounds, that Colm Roche had committed the offence for which he was charged. That reasonable suspicion might be said to have finally dissipated with the ultimate verdict of the jury.
22. There is, thirdly, an obligation on the member in charge to ensure that there is no breach of the Custody Regulations. Nothing was adverted to either on the state of evidence as presented by the prosecution and there was nothing by way of testimony called by the defence, which would show that there had been any breach of the Regulations. A trivial breach, such as the recording of a routine matter might be excused, where however, there is a serious breach related to the human rights of the suspect, that could well be subject to a different analysis. Therefore, in that regard, it should be noted that nothing happened whereby the detention was rendered unlawful.
23. The condition, fourthly, for the release of a prisoner where there is no longer any “reasonable grounds for believing that his detention is necessary for the proper investigation of the offence to which the detention relates” is cast in section 4(5) in conditional terms. There must be a release but only, as the subsection indicates, “If at any time during the detention of a person pursuant to this section” the reasonable grounds which underpinned the necessity for the detention of the prisoner for the purpose of the ongoing investigation are removed. On the state of the evidence before the trial judge, that did not happen. The obligation cast in the section is clearly conditional upon the removal of the grounds upon which it became necessary to detain the prisoner for the proper investigation of the offence.
24. Colm Roche was properly detained upon his arrival in Clonmel garda station by Garda Brendan O’Halloran because there were objective circumstances which allowed him, as member in charge, to believe that his detention was necessary for the proper investigation of the offence. That decision was the justification for the legality of the detention of Colm Roche. It is correct that the initial period of 6 hours, as set out in section 4(3) of the Act of 1984, is not a minimum period for which a person may be detained unless a superintendent or a chief superintendent authorises detention beyond that maximum or any subsequent maximum period. Detention, instead, may be up to 6 hours. Nor, on the state of the evidence before the trial judge, did the gardaí in Clonmel approach the section under any erroneous state of mind. Once an interview had concluded, the process of releasing Colm Roche from detention was initiated about three hours and twenty minutes after his detention had been initially authorised. In the meanwhile, every significant event had been noted by the replacement member in charge, Garda Downey, in the custody record.
25. Essentially, the question of law raised in this case concerns the fact that no evidence was given that the member in charge of the station relieving another member in charge, including the original detaining member in charge, considered whether there were reasonable grounds for the original detention. On the evidence before the trial judge, there was an absence of testimony that Garda Downey had applied his mind as to whether or not there were reasonable grounds for the original detention. It is difficult to see any basis upon which Garda Downey, having regard to the provisions of the Act of 1984, could have any role in considering whether the decision of Garda O’Halloran to detain Colm. Roche was correct or not. If there were reasonable grounds for the detention of Colm Roche when he was brought to the Garda station and when Garda O’Halloran made the decision to detain, there could be no basis for Garda Downey to re-consider that decision. That decision, on the evidence, had been made in a responsible way by Garda O’Halloran and it was arrived at in the manner in which he was required to do it on the arrival of the prisoner at the station. In the absence of such evidence, the prosecution would have failed to prove that the initial detention was lawful.
26. A second limb of the question posed for the opinion of the Supreme Court concerns whether the fact that no evidence was given that the member in charge of the station relieving another member in charge, in this case the original detaining member in charge, considered whether there are reasonable grounds for continuing that detention, of itself render the continued detention of that person unlawful. It is best to return to what the learned trial judge in the course of his ruling on the matter observed:
Various other matters then followed and then at two o’clock he was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various matters that took place during that time that he was relieving his colleague. He did not say anything about satisfying himself of the reasonableness of the continued detention of Mr. Roche. I am quite certain that if you had even a relatively short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention of the prisoner. But he did not do so.
27. The trial judge could not have been correct in his conclusion on this point. On the face of the custody record, it was plain that at 13.52, a Garda Superintendent had given permission for the prisoner to be fingerprinted and photographed. Garda Downey himself testified that at 14.25 hours the prisoner “was taken by Sergeant Henneberry and Detective Garda Quinlan to be photographed and fingerprinted”. Thereafter, he noted that the prisoner was returned to his cell and subsequently that the prisoner was taken to the interview room. What is clear at this point is that when Garda Downey took over from Garda O’Halloran as member in charge, there were no circumstances present which would have called into question the continued detention of the prisoner. On the contrary, it appeared from the custody record itself that there was a valid reason for continuing the custody of the prisoner; namely, that as part of the ongoing investigation a Garda Superintendent had given permission for the prisoner to be fingerprinted and photographed. In those circumstances it is impossible to see how Garda Downey could ever have come to the conclusion that the continued detention of the prisoner was not necessary at that time. While there was no evidence given of any specific conversation between Garda O’Halloran and Garda Downey as to “satisfying himself of the reasonableness of the continued detention of Mr. Roche” the custody record made it abundantly clear that such continued detention was necessary. Garda Downey, at that stage, could hardly have come to the view that the continued detention of the prisoner was no longer necessary. It is puzzling, as Hardiman J notes in his judgment, why the prosecution did not ask one of the witnesses to prove the custody record.
28. Furthermore, the decision to detain the prisoner had, on the evidence, been made in a responsible way by Garda O’Halloran, in the manner in which he was required to do so, on the arrival of the prisoner at the station. To amount to a failure by the prosecution to prove that the detention was lawful, either that evidence had to be absent, which it was not, or there had to be some piece of evidence which on the prosecution case, the defence having not called any evidence, a situation had occurred whereby either: (a) the reasonable grounds justifying the arrest of Colm Roche had disappeared entirely or had become so weakened as to cease to be a basis for reasonable suspicion at all; or (b) some development had to have occurred whereby there were no longer “reasonable grounds for believing that his detention [was] necessary for the proper investigation of the offence to which the detention relat[ed]”.
29. The reality of this case is that no event occurred prior to the release of Colm Roche from custody which would have rendered his detention unlawful. There was nothing on the basis of the prosecution evidence in chief, and there was nothing brought out by cross examination by counsel for the defence, which demonstrated an absence of reasonable suspicion against Colm Roche in respect of the offence for which he had been arrested. Further, there was nothing in the prosecution evidence in chief, and there was nothing brought out by cross examination by counsel for the defence, which demonstrated any change in circumstances, whereby the decision carefully arrived at by Garda O’Halloran would have given Garda Downey any grounds for ordering the release of the prisoner on the basis that there were no longer any reasons for Colm Roche’s continued detention for the proper investigation of the offence. In short, the overall state of the evidence should have been looked at by the trial judge and not just one aspect of the relevant testimony.
In summary
30. In summary, therefore, Colm Roche was, on the evidence before the trial judge, properly arrested on the basis of a suspicion that he had committed an offence under s.15 of the Misuse of Drugs Act 1977, as amended. That suspicion did not, at any stage during the time when he was in garda custody for the purposes of the investigation of the offence, either dissipate or weaken. On arrival in Clonmel garda station, it was the duty of Garda O’Halloran, as the member in charge, to make enquiries of the arresting officer and to only authorise the detention there of Colm Roche where he subjectively believed, and where there was objective grounds to suggest, that the detention of the prisoner was necessary for the proper investigation of the offence for which he was arrested.
31. While there is an ongoing duty cast on the member in charge, and on the Garda replacing him as member in charge, to ensure that the Custody Regulations are complied with, there is nothing on the evidence in this case to suggest that this duty was cast aside or ignored. The evidence is quite to the contrary. While there is an ongoing duty to ensure that where the detention of an arrested person is no longer necessary for the proper investigation of the offence, that they should be released, there is not the slightest evidence before the trial judge that any such event occurred. The duty to order release either because the grounds for arrest have dissipated, or because there are no longer reasonable grounds for believing that the detention of the prisoner is necessary for the proper investigation of the offence, are entirely predicated upon the condition of an event happening which triggers either section. Hence, both s.4(4) and s.4(5) of the Act of 1984, begin with the words: “If at any time during the detention of a person pursuant to this section there are no longer …”
32. The trial judge concentrated on one aspect of s.4, as to the absence of evidence, but did not consider the conditional nature of the requirement for release. That condition in the legislation is entirely explicable and it logically flows from the scheme of detention whereby there should be an initial enquiry on “arrival at the station” and whereby detention should only be authorised on reasonable grounds but, once that is done, it requires the occurrence of a further event, whereby the failure to release renders unlawful the continued detention of a prisoner because of something happening. That could be new information. But, no such thing occurred. Therefore, the ruling by the trial judge was erroneous.
Questions
33. Both questions should therefore be answered in the negative. Whereas failure to give evidence that the member in charge of the station relieving another member in charge considered whether there were reasonable grounds for the original detention, or whether there were reasonable grounds for continuing that detention, was correctly highlighted by the defence, that, of itself, is not enough to render the continued detention of that person unlawful unless there is, on the evidence, an occurrence which requires the release of the prisoner already properly held from that detention.
