Doody v Member in Charge Whitehall Garda Station

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 10 November 2010
• Neutral Citation: [2010] IEHC 469
• Docket Number: RECORD NUMBER: SS NO. 2068/2010
• Court: High Court
• Date: 10 November 2010

[2010] IEHC 469

THE HIGH COURT

RECORD NUMBER: SS NO. 2068/2010

RECORD NUMBER: SS NO. 2067/2010

Doody v Member in Charge Whitehall Garda Station

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN;

CHRISTOPHER DOODY SENIOR

APPLICANT

AND

THE MEMBER IN CHARGE STORE STREET GARDA STATION

RESPONDENT

ANTHONY DOODY

AND

THE MEMBER IN CHARGE WHITHEHALL GARDA STATION

CRIMINAL JUSTICE ACT 2007 S50

CRIMINAL JUSTICE ACT 2007 S50(3)

CRIMINAL JUSTICE ACT 2007 S50(3)(B)

CRIMINAL JUSTICE ACT 2007 S50(3)(C)

CRIMINAL JUSTICE ACT 2007 S50(3)(D)

CRIMINAL JUSTICE ACT 2007 S50(3)(E)

CRIMINAL JUSTICE ACT 2007 S50(3)(F)

CRIMINAL JUSTICE ACT 2007 S50(3)(G)

CRIMINAL JUSTICE ACT 2007 S50(3)(G)(ii)

CRIMINAL JUSTICE ACT 2007 S50(3)(G)(i)

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

MCC & MCD v EASTERN HEALTH BOARD 1996 2 IR 296 1997 1 ILRM 349 1996/13/4064

BUTLER, IN RE 1970 IR 45

MIN OF AGRICULTURE v KELLY 1953 NI 151

FINNEGAN v MEMBER IN CHARGE (SANTRY GARDA STATION) 2007 4 IR 62 2006/23/4889 2006 IEHC 79

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL LAW

Arrest

Detention - Period extended - Direction for further detention made orally - Whether direction for further detention recorded in writing as soon as practicable - Whether detention unlawful - Account to be taken of particular facts and circumstances - Account to be taken of scale of investigation -O'Brien v Special Criminal Court [2008] 4 IR 514; McC v Eastern Health Board [1996] 2 IR 296; Finnegan v Member in charge Santry Garda Station [2007] 4 IR 62 considered -Criminal Justice Act 2007 (No 29), s 50 - Relief pursuant to article 40 refused (2067/2010 and 2068/2010 - Peart J - 10/11/2010) [2010] IEHC 469

Doody v Member in charge Store Street Garda Station

Facts The applicants had been arrested as part of an operation into criminal activities and detained under section 50 of the Criminal Justice Act, 2007. As part of the process each applicant was detained for six hours and these periods were further extended by the relevant Chief Superintendent. The direction to extend the periods of detention was given orally over the telephone and an issue arose as to whether this direction was recorded in writing as soon as practicable as provided under section 50(3)(c) of the Criminal Justice Act, 2007. It was submitted that the District Court had no jurisdiction to make the order for the further extension of detention where the record in writing of the oral direction of the Chief Superintendent was not made " as soon as practicable" after that oral direction was given.

Held by Peart J in holding that the applicants were lawfully detained. It was beyond doubt that the prioritising of activities and the planning of how the questioning of the arrested persons would be pursued was an intricate and complex matter, involving the co-ordination of information being obtained from other arrested persons in different Garda Stations. It was understandable in such circumstances that tasks would be prioritised and that committing a lawful oral direction as to further detention to writing would be lower down on the list of priorities than some other matters. The court was satisfied that to do something "as soon as practicable" could be taken as meaning something to the effect that the action was to be taken as soon as reasonably possible taking into account all the facts and circumstances of a particular case.

Reporter: R.F.

Judgment of

Mr Justice Michael Peart

1 The issues raised on each of these applications are the same, and the essential facts are the same. Therefore both cases can be the subject of a single judgment.

2 I heard these applications on the 10^th November 2010 and gave an ex tempore judgment at the conclusion in which I concluded that each applicant was in custody in accordance with law and refused the relief sought, but indicated at the time that since a significant issue arose, I would set out my reasons in more detail in a written judgment.

3 Each applicant was arrested by members of An Garda Siochana on the 8^th November 2010. The first named applicant was arrested at 06.35am. The second named applicant, who is the grandson of the first named applicant was arrested at the same address at 06.18am.

4 The first named applicant was brought to Store Street Garda Station, while the second named applicant was brought to Whitehall Garda Station, whereupon each was detained pursuant to the provisions of section 50 of the Criminal Justice Act, 2007. Each was arrested on suspicion of being involved in drug trafficking and of being involved in the activities of a criminal gang or organisation.

5 Under powers provided by section 50(3) of the Act of 2007, each applicant was detained for a period of six hours. In due course, this detention was extended as provided by section 50 (3) (b) of the Act of 2007 for a further period not exceeding eighteen hours. At 23.37 hrs in respect of the first named applicant and at 23.31 hrs in respect of the second named applicant, detention in each case was further extended for a period not exceeding twenty four hours pursuant to the provisions of section 50 (3)(c) of that Act.

6 The directions for further detention for a period not exceeding twenty four hours pursuant to the provisions of section 50 (3) (c) were made orally by Chief Superintendent Leahy who was in overall control of the investigation into the alleged offences in question. The evidence has been that he gave these directions by telephone from his home. In this regard, the provisions of section 50 (3) (d) (e) and (f) of the Act of 2007 are relevant to the submissions made on behalf of the applicants and it is convenient to set them forth as follows:

2 "50 (3)

7 (d) A direction pursuant to paragraph (b) or (c) may be given orally or in writing and if given orally shall be recorded in writing as soon as practicable.

8 (e) Where a direction has been given pursuant to paragraph (b) or (c), the fact that the direction was given, the date and time when it was given and the name and rank of the member of the Garda Siochana who gave it shall be recorded.

9 (f) The direction or if it was given orally, the written record of it shall be signed by the member of the Garda Siochana giving it and-

10 (i) shall state the date and time when it was given, the member's name and rank and that he or she had reasonable grounds for believing that such further detention was necessary for the proper investigation of the offence concerned, and

11 (ii) shall be attached to and form part of the custody record (within the meaning of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1987 ( S.I. No. 119 of 1987) in respect of the person concerned."

12 The essential issue arising on the present applications is whether having orally given the directions pursuant to section 50 (3) (c) at 23.37 hrs and 23.31 hrs on the 8^th November 2010 for the further detention of each applicant for a further period of twenty four hours, he recorded same in writing in each case "as soon as practicable" as provided in section 50 (3) (d) of the Act of 2007.

13 During evidence heard in the District Court on 9^th November 2010 on an application pursuant to the provisions of section 50 (3)(g) of the Act of 2007 for a warrant in each case for the further detention of each applicant for a period not exceeding seventy two hours, each applicant having been brought before the District Court for that purpose at 22.35pm on the 9^th November 2010, it emerged from the cross-examination of Chief Superintendent that the oral directions given on the 8^th November 2010 at 23.37 hrs and 23.31 hrs respectively in respect of each applicant had not by that time been recorded in writing. Having heard the evidence adduced the District Judge rejected the applicants' submissions that if the mandatory requirement to record the oral directions in writing as soon as practicable was not complied with it meant that the District Judge had no power to make the orders sought, and he made in each case an order pursuant to section 50 (3) (g) (ii) of the Act of 2007 for the further detention of each applicant for a period not exceeding seventy two hours.

14 Arising from those orders, the applicants came before the High Court during the afternoon of the 10^th November 2010 and sought an inquiry into the lawfulness of their detention. I made an order for those inquiries to take place, and for the production of the applicants before this Court at 4.30pm. The applicants were produced at that time, whereupon the applications were adjourned for a short period until 7.30pm on that day for hearing when evidence was heard and legal submissions were made on behalf of the applicants and on behalf of each respondent.

15 I will set out the evidence which was given before me by Chief Superintendent Leahy, but I should at this stage refer to the fact that in his evidence he stated that at 5am on the 10^th November 2010 he recorded in writing the oral directions which he had given in respect of each applicant on the 8^th November 2010 at 23.37 hrs and 23.31 hrs respectively - some twenty nine and a half hours thereafter.

16 Given that the central issue in this case is whether or not the oral directions were recorded in writing "as soon as practicable", I considered it relevant and important to allow oral evidence to be provided by Chief Superintendent Leahy given the fact that time had not enabled a comprehensive affidavit to be prepared and sworn by him. Counsel for the applicants raised an objection to this course on the basis that they had been given no prior notice that this was the course being adopted by the respondents. However, given the...