O'Brien & Cummins v Bridewell Garda Station & Pearse Street Garda Station
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 05 March 2009 |
| Neutral Citation | [2009] IEHC 112 |
| Court | High Court |
| Date | 05 March 2009 |
[2009] IEHC 112
THE HIGH COURT
Between:
And
CONSTITUTION ART 40.4.2
OFFENCES AGAINST THE STATE ACT 1939 S30
OFFENCES AGAINST THE STATE ACT 1939 S30(4)
OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S10
OFFENCES AGAINST THE STATE ACT 1939 S30(4D)
CRIMINAL JUSTICE ACT 2006 S187(A)
OFFENCES AGAINST THE STATE ACT 1939 S30(4A)
FINNEGAN v MEMBER IN CHARGE (SANTRY GARDA STATION) 2007 4 IR 62 2006/23/4889 2006 IEHC 79
DPP v FINN 2003 1 IR 372 2003 2 ILRM 47 2003/15/3386
DPP v WALSH 1980 IR 294
MAPP v GILHOOLEY 1991 2 IR 258 1991 ILRM 695 1991/4/933
DPP v KEMMY 1980 IR 160
OFFENCES AGAINST THE STATE ACT 1939 S30(4B)
WALSH CRIMINAL PROCEDURE 2002 PARA 5.60
DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 18.2.2009 2009 IESC 11
CRIMINAL LAW
Detention
Extension - Challenge to legality of extension - Time of commencement of application - Multiple detainees - Indication given by Detective Superintendant that further applications pending - Indication given prior to expiry of prior period of lawful detention - Applications not completed until prior period of lawful detention had expired - Witness sworn in for previous application but not for subsequent - Warrant not indicating time of pronouncement of decision - Habeas corpus - Whether giving of indication meant that applications had commenced - Whether sworn evidence - Whether form of warrants sufficient - Finnegan v Member in Charge (Santry Garda Station) [2006] IEHC 79 [2007] 4 IR 62, DPP v Finn [2003] IR 372, DPP v Walsh [1980] IR 294, Mapp v Gilhooley [1991] ILRM 695 and DPP v Kemmy [1980] IR 160 considered - Offences Against the State Act 1939 (No 13), s 30 - Constitution of Ireland, art 40 - Extensions of detention declared lawful (2009/326SS, 2009/327SS and 2009/328SS - Peart J - 5/3/2009) [2009] IEHC 112
O'Brien v Member in Charge Bridewell Garda Station
Facts: The applicants sought orders for their release pursuant to Article 40.4.2 of the Constitution on the basis that their continued detention was unlawful. They had been arrested and detained pursuant to s. 30 Offences against the State Act 1939, as amended. The issue of the precise time at which the applications for extension of their detention was commenced arose as well as whether the evidence heard on the application was sworn evidence and whether the form of the warrants as issued by the District Justice was sufficient to indicate the time that her decision as made. A first application for extension had been concluded prior to 9.15pm on the night in question and then shortly thereafter it was indicated to the Court that several other applications would be made. It was argued inter alia that the manner in which the Detective had indicated to the Court at 9.15pm that he had further applications to make did not suffice to confer jurisdiction on the Court.
Held by Peart J. that the application of each of the applicants should have been deemed to have commenced at the time noted by the District Judge on each of the warrants given to her at 9.15pm. The Court had regarded the evidence given as sworn evidence and the manner in which the evidence was given did not entitle them to an order for release. The warrants were not defective on their face and the detention of the applicants was lawful.
Reporter: E.F.
Judgment of Mr Justice Michael Peart delivered on the 5th day of March 2009:
These applications came before me for hearing on the 2 nd March 2009. I gave my decision to refuse the reliefs sought at the conclusion of the hearing, and indicated that I would give my reasons in a written judgment as soon as possible.
The three above named applicants seek orders for their release from detention pursuant to the provisions of Article 40.4.2 of Bunreacht na h-Eireann on the basis that their continued detention is unlawful. The factual basis for each application is common to all three applications.
Each applicant was arrested and detained under the provisions of s. 30 of the Offences Against the State Act, 1930, as amended on Friday 27 th February 2009. The time on that date at which the first named applicant was so arrested and detained was 9.55pm. The other two applicants were arrested and detained on that date at 9.45pm.
The period of detention in respect of each applicant comes to an end at the expiration of 48 hours from the time of arrest, unless same is renewed by order of a District Judge obtained pursuant to an application under the provisions of Section 30, subsection 4 of the 1930 Act, as substituted by s. 10 of the Offences Against the State (Amendment) Act, 1998, and as further amended by the insertion of section 4D thereto by section 187 (a) of the Criminal Justice Act, 2006.
Those provisions provide as follows:
(4) An officer of the Garda Siochana not below the rank of superintendent may apply to a judge of the District Court for a warrant authorising the detention of a person detained pursuant to a direction under subsection (3) of this section for a further period not exceeding 24 hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
2 (4A) On an application under subsection (4) of this section the judge concerned shall issue a warrant authorising the detention of the person to whom the application relates for a further period not exceeding 24 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and the investigation is being conducted diligently and expeditiously.
3 (4B) On an application under subsection (4) of this section the person to whom the application relates shall be produced before the judge concerned and the judge shall hear any submissions made and consider any evidence adduced by or on behalf of the person and the officer of the Garda Siochana making the application.
4 (4C) A person detained under this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Garda Siochana and shall, if not so charged or released, be released at the expiration of the period of detention authorised by or under subsection (3) of this section or, as the case may be, that subsection and subsection (4A) of this section
5 (4D) If-
(a) an application is made under subsection (4) of this section for a warrant authorising the detention for a further period of a person detained pursuant to a direction under subsection (3) of this section, and
(b) the period of detention under subsection (3) has not expired at the commencement of the hearing of the application but would, but for this subsection, expire during that hearing.
it shall be deemed not to expire until the determination of the application". (my emphasis)
At the heart of the present applications is the time at which the applications for the extension of these applicants' detention were first commenced in the District Court on Sunday 1 st March 2009. Other issues have been raised also such as whether the evidence heard on these applications was sworn evidence, and whether the form of the Warrants issued by the District Judge is sufficient to indicate the time at which the decision was made by her, as opposed to the time at which she signed the warrants.
These applicants are three of seven persons who were arrested in connection with an investigation into a robbery of a large sum of money from Bank of Ireland on Friday the 27 th February 2009. All were arrested and detained in connection with this investigation. That initial detention was extended for 24 hours by order of the respective Chief Superintendents until 9.55 pm on 1 st March 2009 in the case of the first named applicant, and until 9.45pm in respect of the second and third named applicants. Any further detention could only be authorised by an order of the District Court under s. 4 of the Act.
On Sunday 1 st March 2009 a special sitting of the District Court was convened for the purpose of an application to that Court for a further extension of detention pursuant to s. 30 (4) of the Act in respect of each of those seven persons, including the applicants.
The evidence has been that the Court sat at about 7pm on the 1 st March 2009 in order to hear those applications. All seven persons, including the applicants were conveyed to the District Court and were held at first in the cells below the District Court at the Bridewell, Dublin.
According to the affidavit sworn on behalf of the first named applicant by his solicitor she states that the court commenced at 7pm on the 1 st March 2009 and that seven applications for warrants were before the presiding judge. She states that the first such application (in respect of a person other than these three applicants) began at 7pm and concluded at 9.12pm. She then states that the judge enquired at that stage whether it would be possible or practicable to deal with the remaining six applications together, and that the legal representatives appearing on behalf of those detainees (which include the present applicants) "made it clear to the court that the application in respect of each detainee would have to be heard in turn". She then states:
"I say that the remaining detainees...
To continue reading
Request your trial