Clarke v Member in Charge

• Jurisdiction: Ireland
• Judge: Keane C.J.,FENNELLY J.
• Judgment Date: 01 November 2001
• Neutral Citation: [2001] IESC 91
• Court: Supreme Court
• Docket Number: [S.C. No. 191 of 2000]
• Date: 01 November 2001

[2001] IESC 91

THE SUPREME COURT

Keane C.J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

191/00

CLARKE v. MEMBER IN CHARGE OF TERENURE GARDA STATION

BETWEEN

PHILIP CLARKE

APPLICANT/RESPONDENT

AND

THE MEMBER IN CHARGE OF TERENURE GARDASTATION

RESPONDENT/APPELLANT

Citations:

CRIMINAL JUSTICE ACT 1984 S4

CONSTITUTION ART 40.4.2

ZWANN, IN RE 1981 IR 395

CRIMINAL JUSTICE ACT 1984 S4(2)

BROWNE, STATE V FERAN 1967 IR 147

DILLON, STATE V KELLY 1970 IR 174

COX V HAKES 15 AC 506

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL JUSTICE ACT 1984 S4(3)

CRIMINAL JUSTICE ACT 1984 S7(2)

CRIMINAL JUSTICE ACT 1984 S4(8)

CRIMINAL JUSTICE ACT 1984 S4(8A)

CRIMINAL JUSTICE ACT 1984 S2

PEOPLE V FARRELL 1978 IR 13

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

WALSH, STATE V MAGUIRE 1979 IR 373

DPP, PEOPLE V KELLY (NO 2) 1983 1 IR 1

CONDON V MIN FOR LABOUR 1981 IR 62

Synopsis:

- [2001] 4 IR 171 - [2002] 2 ILRM 11

Facts: The proceedings concerned the applicant's detention in a garda station and its legality. The applicant had been arrested and detained on the day he was due to appear in front of the District Court. The applicant was taken to the District Court and back to the garda station. The hearing in the District Court was put back to a later date. Subsequently a habeas corpus application was made and the applicant was released by order of the High Court. The applicant had successfully argued that under the Criminal Justice Act, 1984 he must be physically detained in a garda station and his removal from the station (although still in the company of a garda from the station) meant that his continued detention was unlawful. The respondent now appealed against that order despite the fact that the applicant had been at liberty since the making of the High Court order. The respondent argued that the issue of whether the applicant had been lawfully detained was of real concern to the DPP.

Held by the Supreme Court (Chief Justice Keane and Fennelly J delivering judgments, Murray J., Hardiman J. and Geoghegan J. agreeing) in allowing the appeal. Neither the 1984 Act nor the regulations provided, either expressly or by implication, that the period of detention authorised thereunder came to an end where the removal of the person from the Garda station was required for some other legitimate purpose, in this case his attendance at the District Court. Accordingly, the applicant's detention continued during the period that the applicant was brought to the District Court. The appeal would be allowed and an order issued substituting for the order of the High Court an order allowing the cause shown and discharging the conditional order of habeas corpus. Mr. Justice Fennelly agreeing with the judgment of the Chief Justice referred in particular to the case of In re Zwann [1981] IR 395 and issues arising therein.

1 1st day of November, 2001byKeane C.J.

Keane C.J.

2 The undisputed facts in this case appear to be as follows. The applicant was arrested at 7.45 a.m. on the 14th April 2000 on suspicion of robbery and conveyed to Terenure Garda Station where he was detained under the provisions of S.4 of the Criminal Justice Act 1984. (hereto "the 1984 Act")

3 In her affidavit grounding these proceedings, the applicant's solicitor, Grainne Malone, said that she was contacted in respect of his detention and that it was indicated to the Gardai that she would be visiting the garda station within30 minutes. On her arrival at the station, she saw the applicant being taken by car to the District Court at Tallaght, Co. Dublin.

4 The applicant had on a previous occasion pleaded not guilty to another offence with which he had been charged, which charge was listed for hearing at the District Court in Tallaght on the same morning i.e., 14th April 2000. His solicitor attended in the District Court on his behalf that morning and submitted to the District judge that the applicant's detention was unlawful. The District Judge was told that the Garda involved in the prosecution of the case was not in court and was asked to put the matter back to second calling. That application having been acceded to, the applicant was then detained in a cell in the District Court. At 1 o'clock he was brought back to Terenure Garda Station where his detention was purportedly extended under the 1984 Act for a further six hours. He was then brought back to Terenure Garda Station where the case was called again at approximately 3 p.m. The District Judge said that he did not have any power to inquire into the legality of Mr. Clarkes detention and adjourned the matter to the 3rd May 2000. The applicant was then brought back to Terenure Garda Station.

5 Later that day, an application was made to the High Court (Laffoy J) for an order in accordance with Article 40.4.2° of the Constitution thattherespondent produce before the court at 6 o'clock in the afternoon the body of the applicant and certify in writing the grounds of his detention. The respondent having certified that he was being lawfully detained pursuant to S.4(2) of the Criminal Justice Act 1984, the learned High Court judge, after hearing arguments by counsel, concluded in an ex-tempore judgment that the effect of the removal of the applicant from Terenure Garda Station for the purpose of his attendance in the District Court at Tallaght rendered his detention at 4 p.m. that afternoon - presumably the time at which the application for a conditional order was made - invalid. She accordingly ordered the applicant's release from detention.

6 From that judgment and order, the respondent has now appealed to this court. It is conceded on his behalf that, the applicant having been at liberty since the making of the order in the High Court, no issue as to his detention now arises. It was, however, submitted on his behalf that the court should nonetheless entertain the appeal, having regard to the decision of this court in In Re Swann and Others [1981] I.R.395. It was said that the issue as to whether the respondent was in lawful detention during the relevant periods was of "real concern" to the Director of Public Prosecutions and to all those charged with responsibility for the investigation and prosecution of serious crime.

7 The facts of In Re Swann were somewhat exceptional. The applicants were the master and crew of a fishery trawler which was arrested in Donegal Bay within the territorial waters of the State on suspicion of fishing in contravention of the Fisheries (Consolidation) Act 1959. The master and crew the applicants in the case - were detained. The garda concerned applied to a Peace Commissioner for an order authorising the continued detention of the boat, master and crew for a further period of forty eight hours. Such an order was purportedly made by a Peace Commissioner. The following day, an ex-parte application on behalf of the master and crew was made in the High Court for a conditional order of certiorari directed to the Peace Commissioner in relation to the order and a conditional order of habeas corpusin relation to the detention of the master and crew. The application was made inter alia on the basis that there were defects on the face of the order of the Peace Commissioner. That submission was accepted by the High Court and absolute orders of certiorariand habeas corpus were then made. Long before the matter reached this court. The applicants had been released and the trawler, with its master and crew, had left the territorial waters of theState.

8 The Attorney General (the relevant prosecuting authority in the case of the particular offences) appealed to this court. Not surprisingly, there was no appearance by, or on behalf of the applicants and this court (O'Higgins C.J.,

9 Griffin J and Kenny J.) held that the absolute orders of certiorari and habeas corpus, made without any opportunity having been afforded to the respondents of being heard, could not stand. As to the jurisdiction of the court to hear the appeal in those extremely unusual circumstances, the learned Chief Justice said

"It is clear that the success of this appeal can now have little, if any, practical effect so far as the applicants of the proceedings initiated against them are concerned. Once habeas corpus issued the applicants left our shores and it is most unlikely that they will ever facilitate the resumption of proceedings against them by returning to the jurisdiction of our courts. Let me say at once that I do not consider this to be any bar or obstacle to the prosecution of this appeal. It is true that this court will not entertain questions which are purely hypothetical or academic, and will not hear complaints made by persons who lack a real interest or locus standi in the question raised. However, this is not such a case. Here the matter raised on appeal is of real concern to the Attorney General and to those charged with the duty of initiating prosecutions under the Fisheries (consolidation) Acts. It is of no significance that the success of this appeal can now have no practical effect. If this court on appeal is satisfied for any reason that the orders in question ought not to have been made then these orders must be set aside. If the court declined to do so merely because the orders had been acted upon and practical difficulties were thereby created, it would be declining to exercise its proper appellate jurisdiction. This view has, I think, been implicit in many previous decisions of this court: see, in particular, the State (Browne) -v-Feran [1967] I.R. 147 at p.169 and The State (Dillon) -v-Kelly [1970] I.R. 174."

10 The State (Browne) -v- Feran is, of course, the authority for the proposition that an appeal lies to this court from an order of the High Court granting an order of habeas corpus. In that case, the prosecutor had been sentenced by the District Court to be imprisoned for six months. While he was still serving that...