Broe v DPP and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Ryan
• Judgment Date: 04 December 2009
• Neutral Citation: [2009] IEHC 549
• Court: High Court
• Date: 04 December 2009

Broe v DPP & Ors

JUDICIAL REVIEW

BETWEEN

KEN BROE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGE OF THE NORTHERN CIRCUIT AND JUDGE KEVIN KILRANE

RESPONDENTS

[2009] IEHC 549

[No. 112 J.R./2009]

THE HIGH COURT

CRIMINAL LAW

Delay

As soon as possible - Re-arrest for purposes of charge - Whether accused brought before the court as soon as possible - Delay due to attempts to find special sitting of District Court - Relevance of court venue in charge sheet - Whether reasonable delay - Relevance of surrounding circumstances - Relevance of mala fides - Jurisdiction of court - Whether delay invalidated proceedings - Whether breach of constitutional rights of accused - Whether acquiescence by accused - Whether objection raised promptly - Relevance of change of solicitor - Whether power of arrest pursuant to s.10(2) of Criminal Justice Act 1984 - Whether different procedural requirements applied - O'Brien v Special Criminal Court [2008] 4 I.R. 514, DPP v Birney [2007] IR 338, Whelton v O'Leary [2007] IEHC 460, DPP v Finn [2003] 1 IR 372, State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550, Keating v Governor of Mountjoy Prison [1991] I IR 61, DPP v Bradley [2000] 1 IR 420, DPP (Ivers) v Murphy [1999] 1 IR 98, State (Attorney General) v Fawcitt [1955] IR 39, Coughlan v Patwell [1993] 1 IR 31, State (Byrne) v Frawley [1978] IR 326 and People v Kehoe [1985] IR 444 considered - Misuse of Drugs Act 1977 (No. 12) - Criminal Justice Act 1984 (No. 22 ), ss. 4 and 10(2) - Non Fatal Offences Against the Person Act 1997 (No. 26) - District Court Rules 1997 (SI 93/1997) - Relief refused - (2009/112 JR - Ryan J - 4/12/2009) [2009] IEHC 549

Broe v DPP

Facts The applicant sought by way of judicial review orders of prohibition, certiorari and declarations in respect of criminal proceedings against him. The applicant was re- arrested having been released from a period of detention pursuant to s. 4 of the Criminal Justice Act, 1984 and was charged with offences. However, there was a delay of 3 hours and 45 minutes between the time of arrest and charge. During that period the Gardai were attempting to arrange a special sitting of the District Court in order to bring the applicant before that court but they needed to know the venue of the court in order to complete the charge sheet. It was submitted on behalf of the applicant that he was not charged forthwith as provided for by section 10(2) of the Act of1984. In consequence, it was argued that the charges and all the proceedings that followed including the return for trial to the Circuit Criminal Court were invalid and void. It was not disputed that there was no mala fides on the part of the Gardai. It was argued on behalf of the respondent that the applicant was disentitled from claiming the relief sought by reason of the delay from date he was charged in October 2008 to the bringing of these proceedings in February 2009.

Held by Ryan J. in dismissing the application: That section 10(2) did not confer any power of arrest, but simply dealt with a situation where the person was in fact arrested under some power of arrest either by statute or at common law. In this case, there was a failure to comply with s. 10(2). However, the only irregularity alleged by the applicant was the timing of the presentation of the charges to him, namely the delay between his lawful arrest and being charged. The court proceedings, whereby the applicant came to stand trial were lawful and valid notwithstanding the delay in charging him. This was not a situation where the Court's jurisdiction required that the accused be lawfully brought before it, as is the case with the Special Criminal Court, nor was there an egregious violation of the applicant's constitutional rights. Furthermore, the applicant was guilty of delay in bringing these proceedings and consequently lost the competence to lay claim to the point.

Reasoning in O'Brien v. The Special Criminal Court and Another [2008] 4 I.R. 514 applied.

Reporter: L.O'S.

CRIMINAL JUSTICE ACT 1984 S10(2)

CRIMINAL JUSTICE ACT 1984 S4

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S3

DCR O.17 r1(1)

DCR O.17 r1(3)

DCR O.17 r2(2)

DCR O.17 r3

CRIMINAL LAW ACT 1997 S4(3)

O'BRIEN v SPECIAL CRIMINAL COURT & DPP 2008 4 IR 514 2008 1 ILRM 510 2007/45/9603 2007 IESC 45

OFFENCES AGAINST THE STATE ACT 1939 S30A(3)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S11

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 S43

BIRNEY & ORS v DPP 2007 1 IR 337 2006/6/1072 2006 IECCA 58

WHELTON v JUDGE O'LEARY UNREP BIRMINGHAM 19.12.2007 2007/60/12903 2007 IEHC 460

DPP v FINN 2003 1 IR 372 2003 2 ILRM 47 2003/15/3386

TRIMBOLE, STATE v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550 1985 ILRM 465

DPP (MCTIERNAN) v BRADLEY 2000 1 IR 420 1999/6/1506

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

RSC O.84 r21(1)

BYRNE, STATE v FRAWLEY 1978 IR 326

DPP, PEOPLE v KEHOE 1985 IR 444 1986 ILRM 690 1985/1/150

1 JUDGMENT of Mr Justice Ryan delivered on the 4th day of December, 2009

Introduction

2 This is an application for judicial review seeking orders of prohibition and certiorari and declarations in respect of criminal proceedings against the applicant, who has been returned for trial to Letterkenny Circuit Criminal Court on charges under the Non-Fatal Offences against the Person Act, 1997, and the Misuse of Drugs Act, 1977. The events giving rise to the charges took place on the 9 ^th October, 2008 at Letterkenny. The accused was charged with the offences on the 12 ^th October, and 15 ^th October, 2008. Leave was applied for and granted on the 2 ^nd February, 2009.

3 Section 10(2) of the Criminal Justice Act 1984 , provides that a person who has been released from detention under s. 4 of that Act can only be re-arrested by order of the District Court or for the purpose of charging him forthwith.

4 The applicant in this case was re-arrested following a period of such detention and charged with offences. He was brought to court and is now facing trial by judge and jury. The trial has been stopped awaiting the outcome of this application in which he is challenging the validity of the charges and the subsequent court process.

5 There was a delay of 3 hours and 45 minutes between the time when the applicant was arrested and when he was charged. During this period the Gardaí were trying to arrange a for a special sitting at the District Court to which they could bring the applicant and they needed to know the venue of the court in order to complete the charge sheet. The applicant's case is simply that the hold-up means that the charge did not happen forthwith, as the subsection provided. In consequence, he argues, the charges and all the proceedings that followed including the return for trial were invalid and void.

6 Paragraph 11 of the grounding affidavit sworn by the applicant's solicitor says:-

"I am advised and believed that the applicant herein was being detained unlawfully at the time when he was charged with the offences, the subject matter of the proceedings herein. I am further advised and believe that accordingly the applicant has been unlawfully before the courts at all times during the prosecution herein. I say and believe that the second named respondent has no jurisdiction to hear the trial of the applicant herein or to in anyway deal further with the prosecution of the applicant herein and I say and believe that the first named respondent has no power to deal further with the prosecution of the applicant herein on the charges currently before the courts."

7 Paragraph E (5) of the Statement of Grounds says:-

"Following his release from detention pursuant to s. 4 of the 1984 Act, the applicant was re-arrested and thereafter detained. This arrest and/or detention was contrary to law where he was not immediately charged with any criminal offence or otherwise detained on any lawful basis. His subsequent charging with the offence is the subject matter of the proceedings herein and the criminal proceedings arising therefrom are null and void and of no legal effect where his detention prior to being charged was unlawful."

8 There is no challenge to the facts as deposed by the Gardaí. It is accepted or not disputed that there was no mala fides on the part of the Gardaí and that there was no actual difference between what happened to the applicant and what would have occurred if the procedure contended for had been followed, except for the timing of the charge. Another matter that is not in dispute is the reason put forward by the Gardaí for not charging the accused earlier than 12.33 pm on Sunday 12 ^th October, 2008. The Gardaí depose in their affidavits that they had instructions from the DPP to charge the applicant and were in the process of doing so. They had to state in the charge sheet the court at which he was to appear; in order to ascertain the court they made inquiries with the Courts Service and acted as soon as they knew the position.

The Facts

9 On Thursday 9 ^th October, 2008 the applicant was arrested and detained at Monaghan Garda Station under s. 4 of the Criminal Justice Act 1984, in connection with an assault that caused serious injuries to a young man in Letterkenny. Shortly before he was due to be released, the DPP gave instructions that he was to be charged with a number of offences. When the applicant was released by the Gardaí at 8.48 am on Sunday 12 ^th October, 2008, he was immediately re-arrested for the purpose of charging him, but he was not charged until 12.33 pm, some 3¾ hours later.

10 The chronology of Sunday 12 ^th October, 2008 is as follows.

11 8.11 am - DPP directed that the applicant be charged with certain offences.

12 8.48 am -...