C.I. v The Member in Charge of Dun Laoghaire Garda Station

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 October 2020
• Neutral Citation: [2020] IEHC 512
• Docket Number: [2020 No. 1290 SS]
• Court: High Court
• Date: 20 October 2020

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

C.I.

APPLICANT

AND

THE MEMBER IN CHARGE OF DÚN LAOGHAIRE GARDA STATION

RESPONDENT

[2020] IEHC 512

Richard Humphreys

[2020 No. 1290 SS]

THE HIGH COURT

Unlawful detention – Unlawful delay – Arrest – Applicant seeking an inquiry under Article 40.4 of the Constitution – Whether the detention of the applicant was unlawful

Facts: The applicant sought an inquiry under Article 40.4 of the Constitution. The High Court (Humphreys J) accepted the application for an inquiry on the basis of a telephone hearing on application of the applicant’s counsel, and made an order for an inquiry under Article 40.4. On the return date, 26th August, 2020 at 11 a.m., the respondent, the member in charge of Dún Laoghaire Garda Station, produced a certificate under Article 40.4. Humphreys J made a production order to allow consultation to take place in the Four Courts where the Article 40 hearing was to be held and adjourned the matter to allow instructions to be taken. When the sitting resumed, he received an affidavit of Garda Carway and also received oral evidence from Garda Carway who was cross-examined. He received submissions from Ms Brennan S.C. for the applicant and from Mr McGillicuddy B.L. for the respondent. Having heard the matter, Humphreys J informed the parties of the order being made and indicated that reasons would be given later. The issues were summarised under four headings: (i) whether the arrest was other than for the purposes of being charged; (ii) whether there was unlawful delay in charging the applicant; (iii) whether taking the applicant to Dolphin House rendered the detention unlawful; and (iv) whether the requirement to bring the applicant to a criminal court “as soon as practicable” was breached overall.

Held by Humphreys J that it was clear from the evidence that the arrest was for the purpose of charging the applicant. He held that going through the normal custody procedures and preparing and printing charge sheets does not amount to the kind of “delay” envisaged by Fennelly J in O’Brien v Special Criminal Court [2007] IESC 45; a period of an hour, give or take, in a case with no special features, could not reasonably be regarded as involving unlawful delay. Humphreys J held that if a judge of the District Court requests the attendance of a prisoner to assist in facilitating the court, especially when that attendance is relatively brief, it would be unreasonable to hold that complying with such a request could not be accommodated by the notion of practicability for the purposes of the Criminal Justice Act 1951 or would amount to a delay rendering an otherwise lawful detention unlawful. Humphreys J held that the only relevant delay was between 11:47 a.m. when the applicant was charged and 4:40 p.m. when he would have been brought to court had he not frustrated that. In Humphreys J’s view, that sort of delay is not in breach of the requirement to come before a court as soon as practicable in all the circumstances.

The order Humphreys J made on 26th August, 2020 was as follows: (i) as he was satisfied that the applicant was in lawful custody, he dismissed the application; (ii) he indicated that the applicant could therefore be brought to the District Court on the criminal matter; and (iii) he adjourned the question of costs generally with liberty to apply.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Tuesday the 20th day of October, 2020

1 Where the custodian of a detained person complies with a request, as opposed to an order, of a judge to bring that person before a court, does the detention thereby become unlawful? While from a legal point of view that is a surprisingly open question, about which reasonable people may well disagree, the common-sense answer is No, and I think that is the appropriate legal answer as well.

Facts

2 The applicant was born in 1974 and is now 46 years of age. On 4th April, 2020 it is alleged that he committed a number of offences, in particular, assaulting his 90-year-old father, and taking and damaging his father's phone. Certain aspects of those matters have already been proved to the civil standard in the sense that a barring order has been made in relation to the applicant, but the allegations await proof to the criminal standard.

3 The injured party's complaint was made available to the court. While that complaint is not proof of its contents, it does at least outline the nature of the allegation, which was that the applicant came to the father's house looking for money, took the father's phone out of his hand preventing him from phoning the Gardaí, got the father in a headlock and hit him “ black and blue”. The applicant then left, but came back again looking for money. The father's grandson was hit on the back of the head. Gardaí were eventually called, but the applicant had left by that stage.

4 As the domestic violence proceedings were heard otherwise than in public under s. 23 of the Domestic Violence Act 2018, it seems appropriate to redact the applicant's name for the purposes of the present judgment.

5 The applicant was first arrested and questioned on 8th May, 2020 and a file was submitted to the DPP. Around two weeks before the re-arrest, the DPP gave directions regarding the charging of the applicant. As matters by this stage had moved into August, one need hardly point out that the courts system operated in a less full-throttled way compared to term-time or even compared to other vacation periods.

6 The applicant was at this point on bail and was signing on on a daily basis. On 25th August, 2020 he presented at Dún Laoghaire Garda Station to sign the station bail book. When doing so, he was informed by a member of An Garda Síochána that he was supposed to be in the Family Court in Dolphin House. He stated that he didn't need to attend as it was for a barring order. The father had previously been brought by Gardaí to the Family Law Court as part of the COVID Community Engagement Scheme, which was being run to deal with domestic violence matters during the COVID-19 emergency.

7 At 10:55 a.m., Garda Rachel Carway arrested the applicant at Dún Laoghaire Garda Station under s. 10(2) of the Criminal Justice Act 1984 which allows for re-arrest for the purpose of charging. After the applicant was arrested, Garda J.P. Durkan, who had been one of the Gardaí involved in the COVID Community Engagement Scheme, contacted the station to ask if any Garda present knew whether the applicant would attend the family law proceedings. He was told that the applicant had just been arrested. The learned District Court judge, Judge Furlong, was informed of this and requested that the applicant be presented to his court in Dolphin House so that he could finalise the barring order application. The applicant was searched and placed in a cell. He requested a solicitor and that was facilitated by the Gardaí. Clearly those procedures took a certain amount of time.

8 Various communications with the applicant's solicitor were put to Garda Carway in evidence, but she had no particular knowledge of those and no oral evidence was called on behalf of the applicant. Following the issues of searching, placing in a cell and dealing with legal advisers, the remainder of the time was taken up with preparing and printing the charge sheets. Garda Carway herself prepared the charge sheets and at 11:47 a.m., the applicant was charged by Sgt. Killian Donohoe with three offences under s. 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001, s. 3 of the Non-Fatal Offences against the Person Act 1997 and s. 2 of the Criminal Damage Act 1991.

9 Garda Carway intended to bring the applicant to the District Court on the criminal matters forthwith, but the judge's request to finalise the barring order was acceded to first. She had a discussion with Sgt. Donohoe at that point about availing of the evening court. The applicant was taken from Dún Laoghaire Garda Station at 12:15 p.m. to Dolphin House. The party arrived at 12:50 p.m. and the barring order matter was taken straight away. A barring order was made for a two-year period. That application finished after about 30 minutes at 1:20 p.m. The Gardaí rechecked the availability of the Criminal Court in the CCJ at that point, but were told that the relevant court had finished business and that they would have to wait until 4:30 p.m. for the evening court. The applicant was then brought back to Dún Laoghaire Garda Station, arriving at 2:00 p.m. A doctor was contacted to provide methadone for the applicant. He was then conveyed to the evening court, arriving at the CCJ at 4:29 p.m.

10 While being processed, he stated that he was awaiting a COVID test. He provided information recorded on a COVID screening/algorithm form timed at 4:40 p.m. that he had a cough and other symptoms. Based on the...