DPP v Early

• Jurisdiction: Ireland
• Judge: Mrs. JusticeMcGuinness
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 179
• Date: 01 January 1998
• Docket Number: [1997 No. 412 J.R.]
• Court: High Court

[1997] IEHC 179

THE HIGH COURT

No. 412 J. R. 1997

DPP v. EARLY

JUDICIAL REVIEW

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

DISTRICT JUDGE WILLIAM EARLY

RESPONDENT

AND

PATRICK RALPH, MAURICE O'RIORDAN, CHRISTOPHER BURKE,EUGENE KELLY AND MICHAEL MAGUIRE

NOTICE PARTIES

Citations:

MISUSE OF DRUGS ACT 1977 S25

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(a)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(b)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(c)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(2)(g)(i)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S1

CRIMINAL PROCEDURE ACT 1967

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(1)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(5)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(1)(a)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(6)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(2)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(3)

CRIMINAL JUSTICE ACT 1984 S4

OFFENCES AGAINST THE STATE ACT 1939

CRIMINAL JUSTICE ACT 1984 S4(2)

CRIMINAL JUSTICE ACT 1984 S10

CRIMINAL JUSTICE ACT 1984 S10(2)

HEGARTY V GOV OF LIMERICK PRISON 1998 1 IR 412

QUINLIVAN V GOV OF PORTLAOISE PRISON 1998 1 IR 456 1998 1 ILRM 294

MCDONNELL, AG V HIGGINS 1964 IR 374

LYNCH, STATE V BALLAGH 1986 IR 203

KEATING V GOV OF MOUNTJOY PRISON 1991 1 IR 61

SUMMARY JURISDICTION ACT 1857

COURT (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

Synopsis

Criminal

Jurisdiction; statutory interpretation; drugs offence charges; order sought quashing discharge and compelling charging of suspects; rearrest of suspects under s.4, Criminal Justice (Drug Trafficking) Act, 1996; whether s.4 permits rearrest, for the purpose of immediate charge, in the absence of new information or a court warrant; District Judge thought not and discharged suspects; whether interpretation erroneous; whether error within jurisdiction; whether District Judge could determine legality of detention; whether orders should be granted given State's conduct of proceedings Held: S.4 misinterpreted; error outside basic jurisdiction of District Court; validity of detention matter for High Court; orders should not be refused as important point at issue; order of certiorari granted( High Court: McGuinness J. (ex tempore)02/12/1997)- [1998] 3 IR 158

D.P.P. v. Early

1 Transcript of Ex Tempore Judgment given by Mrs. JusticeMcGuinnesson Tuesday 2nd December, 1997

2 In these judicial review proceedings, the Applicant, who is the Director of Public Prosecutions, seeks orders of certiorari to quash orders made by the Respondent, District Judge Early, on 18th and 20th November, 1997 in relation to a prosecution of the five Notice Parties, Patrick Ralph, Maurice O'Riordan, Christopher Burke, Eugene Kelly and Michael Maguire, on charges pursuant to the Misuse of Drugs Act, 1977. By these orders, the Respondent District Judge on 18th November, 1997 discharged the five Notice Parties from custody and on 20th November, 1997 discharged the first, second and third named Notice Parties from custody.

3 The Applicant also seeks an order of mandamus compelling the Respondent to charge or permit the charging of all or any of the Notice Parties with specified offences under the Misuse of Drugs Acts, 1977 to 1984. Statements of opposition have been filed on behalf of the first, second and third named Notice Parties. Each of these Notice Parties was fully represented in Court by solicitor and by Senior and Junior Counsel in the hearing before me.

4 The District Judge, having been served with the proceedings, did not file a statement of opposition and took no part in the proceedings. Despite the best efforts of the Gardai on at least two occasions, it proved impossible to serve the fourth and fifth named Notice Parties with the proceedings, and they therefore took no part in them.

THE FACTUAL BACKGROUND

5 The factual background to these proceedings is set out in the affidavit of Claire Loftus, a solicitor in the Chief State Solicitor's office. This affidavit was strongly criticised by Counsel on behalf of the three Notice Parties, and in particular by Counsel on behalf of the first named Notice Party. It was criticised on the grounds that, particularly in the first part of the affidavit, it contained a considerable amount of hearsay. Whereas hearsay is permissible to an extent in an affidavit for the purpose of ex parte application for leave to issue judicial review proceedings, it is contrary to the provisions of the Superior Court Rules in the case of affidavits to be used in a plenary hearing. There is some basis for the criticism of Ms. Loftus" affidavit. I accepted this during the course of the hearing, particularly as regards the first part of the affidavit. However, I would also have to accept that there was no actual challenge, either in the statements of opposition or during the hearing, to the facts as set out in Ms.Loftus" affidavit. Nor was there any suggestion that the events described therein did not occur.

6 On 13th November, 1997, the Gardai discovered some 300 kg of cannabis resin at a house in Tallaght. Subsequently, the first, second and third named Notice Parties were arrested under section 25 of the Misuse of Drugs Acts, 1977 to 1984 for offences under section 15 of the 1977 Act. Some short time later, the fourth and fifth named Notice Parties were arrested nearby. It is alleged that they had a quantity of cannabis in the boot of the car in which they were travelling. All five Notice Parties were detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. I will deal with the provisions of that Act later in this judgment.

7 They were detained under section 2 of the 1996 Act for investigation of the alleged offences. They were first held for the six hour period which is permitted under section 2(2)(a) of the Act, and subsequently, on the direction of Chief Superintendent Carty, for a further eighteen hour period under section 2(2)(b) of the Act. Again, on 14th November (the following day), under the direction of Chief Superintendent Carty, they were held for a further twenty-four hour period under section 2(2)(c) for the investigation of the offences. This, under the scheme of the Act, completed the amount of time that they could be held by the direction of a police officer not below the rank of ChiefSuperintendent.

8 At 6.30 p.m. on 15th November, 1977, an application was made to the District Court for a warrant allowing for a further seventy-two hour detention period under section 2(2)(g)(i) of the Act following on the forty-eight hours for which they had been held since their arrest. The application was made to District Judge Desmond Windle. District Judge Windle apparently considered that the matter lay with in his jurisdiction and proceeded to deal with it. He made orders issuing the warrants required to allow the parties to be held for a further seventy-two hourperiod.

9 It is clear from the definition section of the Criminal Justice (Drug Trafficking) Act, 1996 (section 1) that not all District Judges have the jurisdiction to issuethese warrants, as the definition of Judge of the District Court is given as: "the President of the District Court or any other Judge of the District Court standing nominated for the time being for the purposes of this Act by the President of the DistrictCourt".

10 It appears that District Judge Windle either was unaware that he had to be nominated or considered that he was in fact nominated for the purposes of the Act.

11 On 18th November, doubts arose among the Gardai themselves as to whether in fact District Judge Windle was a nominated District Judge. On investigation, it transpired that apart from the President of the District Court himself, only District Judge Thelma King was nominated for the purpose of issuing the relevant warrants in the Dublin Metropolitan Area. When this was discovered, it became clear that the warrant holding the five Notice Parties was invalid and they were allreleased.

12 It appears to me somewhat strange that a situation was permitted to arise when neither the Gardai dealing with drugs offences nor the District Judge himself (and presumably other District Judges as well) were kept informed as to who was nominated to issue the warrants necessary under the 1996 Act. However, this is not a matter which arises for decision before this Court in these proceedings.

13 The Director of Public Prosecutions then directed that all five Notice Parties were to be re-arrested pursuant to section 25 of the Misuse of Drugs Act, 1977 which section permits an arrest without a warrant. They were to be charged and brought before the Court in the normal way whereupon their cases would be dealt with by the District Court and processed under the Criminal Procedure Act, 1967.

14 The five Notice Parties were in fact re-arrested and brought before District Judge Early on 18th November. Submissions were made by solicitors on behalf of at least some of the Notice Parties that re-arrest was only permissible under section 4(1) of the Criminal Justice (Drug Trafficking) Act, 1996. Section 4(1) required that new information asto the parties suspected participation in the relevant offence had to be provided to the Court before the parties could be re-arrested for the purpose of further detention. Such re-arrest could only take place under the authority of a warrant issued by the Court. Submissions were apparently made by Detective Inspector Sutton that the re-arrest was not under section 4(1) but under section 4(5) which provided for arrest and immediate charge. District Judge Early accepted the submissions of the solicitors for the Notice Parties. Apparently, they were all released by five o'clock on that day.

15 The Gardai then decided to seek ordinary District Court warrants to re-arrest the five Notice Parties. Since District Judge Early was...