DPP (Dillane) v Alcock

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 21 December 2006
• Neutral Citation: [2006] IEHC 437
• Docket Number: [2006 No. 487 SS]
• Court: High Court
• Date: 21 December 2006

[2006] IEHC 437

THE HIGH COURT

[No.847 S.S./2006]

DPP (DILLANE) v ALCOCK

IN THE MATTER OF THE SUMMARY JURISDICTION (IRELAND) ACT,

1857 AS EXTENDED BY SECTION 51(1) OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN/

DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA MICHAEL DILLANE

PROSECUTOR

AND

TERENCE ALCOCK AND JACQUELINE ALCOCK

ACCUSED

CRIMINAL LAW

Detention

Accused arrested and detained in garda custody on basis that arresting garda had reasonable cause for believing detention necessary for proper investigation of indictable offence - Summary charges subsequently proffered - Whether applicant's detention necessary for investigation of indictable offences only - Whether prosecutor precluded from detaining accused for purposes of investigating summary offence - Whether subsequent decision to proffer summary rather than indictable charges undermines arresting garda's reasonable cause at time of arrest - Whether prosecutor estopped from proffering summary charges - Whether charges lawfully proffered - Criminal Justice Act 1984 (No 22), s 4 - DPP (Hallinan) v Penny (Unrep, Dunne J, 27/7/2006) [2006] IEHC 230 and People (DPP) v Redden [1995] 3 IR 560 considered - Declaration that detention lawful granted (2006/847SS - Murphy J - 21/12/2006) - [2008] 1 IR 200; [2006] IEHC 437 DPP (Dillane) v Alcock

Facts: This matter related to an appeal by way of case stated arising out of the District Court Judge's refusal to dismiss certain charges against the accused at the hearing of their cases. It was submitted on behalf of the accused that their detention following arrest was unlawful having regard to the provisions of section 4 of the Criminal Law Act, 1984, that the member in charge did not have the requisite independent bona fide belief that the accused parties were persons who should be detained pursuant to section 4(2) of the Criminal Justice Act 1984, that the preferring of summary charges against the accused rendered the detention unlawful and that the DPP was estopped from preferring summary charges.

Held by Murphy J. in dismissing the appeal by way of case stated:

That the subsequent decision to prefer summary charges against the accused under section 11(a) of the Firearms and Offensive Weapons Act, 1990 did not undermine the arresting Member's "reasonable cause" for believing that the accused were guilty of an offence contrary to section 11(b) of the Firearms and Offensive Weapons Act, 1990 at the time of arrest. The District Court Judge concluded that the Member in Charge possessed the requisite independent bona fide belief that the accused should be detained pursuant to section 4 of the Criminal Justice Act and it was not established that there was any error of law made by the learned District Judge or any legal grounds for challenging that finding of fact made by him. In the circumstances, the learned District Judge was entitled to hold that the detention of the accused was lawful and that the Director was not estopped from preferring summary charges.

Reporter: L.O'S.

1 Mr. Justice Roderick Murphy delivered 21st December 2006

1. Parties

2 The applicants are husband and wife. Terence Alcock was charged with assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997, breach of s.6 of the Criminal Justice (Public Order) Act, 1997, and an offence contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990 (committing an assault in the course of a dispute in a manner likely to intimidate another person with an article capable of inflicting serious injury, namely a hurley.)

3 Mrs. Alcock was charged with an offence contrary to the last two provisions, being the possession of a hammer.

2. Case Stated

4 On the 26 ^th January, 2006, when the charges were before the District Court for hearing, the solicitor on behalf of both accused made a preliminary application that the charges should be dismissed and, when the learned District Judge declined to make such an order, an appeal was made by way of case stated. Agent on behalf of the accused submitted as follows:

5 1. The detention of the accused following arrest was not lawful having regard to the provisions of s. 4 of the Criminal Law Act, 1984;

6 2. the Member in Charge did not have the requisite independent bona fide belief that the accused parties were persons who should be detained pursuant to the provisions of s. 4(2) of the Criminal Justice Act, 1984;

7 3. the preferring of summary charges rendered the detention unlawful, and

8 4. the Director was estopped from preferring summary charges.

3. The lawfulness of the detention of the accused

9 Section 4(1) of the Criminal Justice Act, 1984 provides:

"This section applies to any offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence."

10 Section 11 of the 1990 Act provides:

"Where a person, while committing or appearing to be about to commit an offence, or in the course of a dispute or fight, produces in a manner likely unlawfully to intimidate another person any article capable of inflicting serious injury, he should be guilty of an offence and should be liable -"

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding twelve months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding five years, or to both."

11 In the circumstance, s. 4 does apply to an offence under the 1990 Act.

12 The accused was arrested without warrant on 22 ^nd October, 2005, pursuant to s. 4 of the Criminal Law Act, 1984 on the basis that the prosecutor had "reasonable cause" to suspect he was guilty of an offence contrary to s. 11(b) of the 1990 Act.

13 The applicants submitted that there was no reasonable cause and if there were such cause, both by the arresting garda and the Member in Charge, that such cause was undermined by the D.P.P. electing to proceed by way of summary prosecution.

14 The applicants relied on ^{People (D.P.P.) v. O'Toole and Hickey,} (Unreported, Court of Criminal Appeal, 20 ^th July, 1990) and on Birney & Ors. v. D.P.P., (Unreported, Court of Criminal Appeal, 12 ^th May, 2006).

15 In the former case, Mr....