DPP v Kavanagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 29 October 1997
• Neutral Citation: 1998 WJSC-SCC 5591
• Court: Special Criminal Court (Ireland)
• Date: 29 October 1997

1998 WJSC-SCC 5591

THE SPECIAL CRIMINAL COURT

Barr J.

Smyth J.

Reilly J.

DPP v. KAVANAGH

THE PEOPLE (D.P.P.)

-v-

JOSEPH KAVANAGH

Citations:

CRIMINAL LAW ACT 1976 S11

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

OFFENCES AGAINST THE PERSON ACT 1861 S47

O, STATE V O'BRIEN 1971 IR 42

1 Judgment of the Court delivered by Mr. Justice Barr on the 29th day of October, 1997

COUNTS 1, 2 AND 3 IN THE INDICTMENT

2 Mr. White counsel for the accused, he raised an issue of law regarding counts 1, 2 and 3 in the Indictment. They relate to respectively the false imprisonment of James Lacey, Joan Lacey and Suzanne Lacey which are stated to be "contrary to Common Law and as provided for by Section 11 of the Criminal Law Act, 1976" (the 1976 Act). It is submitted that the offence charge is one at common law only and that Section 11 deals with penalty and does not create statutory offence. The significance of this is that a statutory offence of false imprisonment has been created by Section 15 of the Non-Fatal Offences Against the Person Act, 1997(the 1997 Act), which also abolishes the prior common law offence. There is no provision in that Act or in the Interpretation Acts saying prosecution of such offences at common law allegedly committed prior to the date when the 1997 Act came into force (19th August of this year) and which come to trial after that date. Mr. O'Higgins, counsel for the prosecution accepts that such a lacuna exists,but he submits that Section 11 of the 1976 Act creates a statutory offence of false imprisonment which has not been abolished by the 1997 Act. Mr. White concedes that if there is a statutory offence of false imprisonment created by Section 11 in addition to that at common law, then the accused may be prosecuted and tried for the statutory offence therein created after the 1997 Act came into operation.

3 Section 11 of the 1976 Act is in the following terms:-

4 2 "11(1) The offences of kidnapping and false imprisonment and an offence under Section 10 of the Criminal Law (Jurisdiction) Act, 1976shall be felonies.

5 (2) A person guilty of kidnapping or guilty of false imprisonment shall be liable on conviction on indictment to imprisonment for life."

6 In the opinion of the Court the foregoing provision does not create a statutory offence. What it does is to categorise the common law offences of kidnapping and false imprisonment as being felonies and it provides also the maximum penalty which may be imposed on a person guilty of such offences. Section 11 is not a provision similar to Section 47 of the Offences Against the Person Act, 1861 which does create a statutory offence in addition to a similar offence at common law - see the judgment of O'Dalaigh C.J. in The State (O) -v- O'Brien [1971] I.R. 42 at pp.50 and 51. It follows, therefore, that Mr. White's submission is well-founded that it is not possible for the Court to consider counts 1, 2 and 3 in the Indictment as the offences charged have been abolished by the 1997 Act.

7 The court regards it as surprising and most unfortunate that those having responsibility for the drafting and enactment of the 1997 Act should have made an obvious error of such a serious nature.

COUNTS 5, 6 AND 7

8 The remaining counts in the Indictments charge the accused with respectively robbery at the National Irish Bank, College Green, Dublin on 2nd November, 1993; the related offence of demanding with menaces and possession of a firearm at Blackrock, Dublin on the same date with intent to commit the indictable offence of false imprisonment.

9 Having considered the evidence, the court is satisfied beyond reasonable doubt as to the following matters:-

10 Mr. James Lacey was, in November, 1993 the chief executive of the National Irish Bank a "high street" bank, which has its principal place of business in College Green and its administrative headquarters at Wilton Place, Dublin. Mr. Lacey then resided with his wife and children in a dwellinghouse at Blackrock, County Dublin.

11 At or about 1.30 a.m. on the morning of the 2nd November, 1993, Mr. Lacey and his wife arrived home by car from business engagement in the midlands. They had employed a baby-sister, a young lady called Tanya Waters, to mind their children, Suzanne aged 14 years; Robert aged 13 years; Louise aged 10 years and Sarah Jane aged 6 years. On their arrival at the house. Mr. and Mrs. Lacey were apprehended by an armed gang which appears to have comprised about seven men. Mr. Lacey was struck on the head with a firearm. He his wife and Ms. Waters were forced to lie down on the drawing-room floor. He was handcuffed. The children were woken and brought downstairs. Later, by direction or the gang they were brought back to their bedrooms by Ms. Waters, dressed and brought downstairs again. Soon afterwards the children. Mrs. Lacey and Ms. Waters were taken to another living-room on the ground floor where they were tied up with sheets and photographed by a polaroid camera which was then destroyed. Meanwhile, Mr. Lacey was forced to remain in the drawing-room. He did not see his children or the baby-sitter again that night. Mrs. Lacey was told by one of the gang that she would be brought to where her husband was being held and that she was to inform him that he must do everything he was told by the gang and that his son, Robert, had been shot in the hand - by inference as a warning about what the gang would do if Mr. Lacey did not carry out their instructions. She did as she was told. In fact Robert had not been shot. Mrs. Lacey, Ms. Waters and the children were taken away by the gang when they left the house at about 6.00 a.m. They were brought to secluded stable at Blackhorse Avenue where they were gagged, tied up and threatened that they would be knee-capped if anything went wrong. They were found by garda officers late in the evening of 2nd November.

12 While the family were being detained in their home, Mr. Lacey was told by one of the gang that they would be bringing a man to the house and that he (Lacey) was to accompany this man in a van to the National Irish Bank, College Green, in the morning. It was intimated to him that the gang was aware that there was a "secret room" in the bank which was full of cash. This money was to be loaded into the van. It was further intimated that the gang was aware of certain details about himself; the manager at College Green, Mr. Keenan, and another member of the staff, Mr. Boner. This included information about their families and where they lived.

13 A man was brought into the room where Mr. Lacey was being detained and was put lying on the floor beside him. He was hooded and his feet were tied; he was unshaven and filthy. Soon after his arrival, the man's hood was removed. Mr. Lacey was told that this was the person who would accompany him to the bank. At that stage the man was taken upstairs by members of the gang and he reappeared shortly afterwards cleaned up and clad in Mr. Lacey's clothes. This man was the accused. While the later was upstairs Mrs. Lacey was brought into the room where her husband was detained. She had a pillowcase over her face. She lifted it up and informed him that she was being taken away. At or about that time and before the accused returned to the room, Mr. Lacey was handed by a gang member polaroid photos of his wife, Ms. Waters and each of the children. He was told that if he wanted to see them again alive he was to follow the instructions he had been given.

14 When the accused returned to the room he sat beside Mr. Lacey. He, the accused, was given further instructions relating to the robbery. He was given a pair of red coloured spectacles which he was told to wear as an indication that events were going according to plan. The leader of the gang told Mr. Lacey that the accused would drive the van to the bank and park next door to the loading-bay in St. Andrew Street. He was told that they were not to leave home before 10.00 a.m. and to arrive at the bank by 11.00 a.m. The operation there was to conclude at 1.00 o'clock. It was to be carried out as quickly as possible and Mr. Lacey was to remove "walkie-talkies" from the security men.

15 After the gang had gone, Mr. Lacey queried the accused as to his identity and where he had come from. He responded that the gang had told him not to say who he was and he indicated only that his first name was "Joe". He also stated that he had been kidnapped and held for two weeks prior to that time. He said that he had been brought to the Lacey house by members of the gang; that they were dangerous people and that their instructions must be followed. He said that he also had instructions not to tell Mr. Lacey where they were to collect the van and was not to release him until 7.00 a.m. At or about 8.00 a.m. he did so and Mr. Lacey then made tea for both of them. In course of a further conversation, the accused showed Mr. Lacey polaroid pictures of his sons and mother-in-law. He said that they were being held captive by the gang and that he feared for their safety. He said that he had been told by the gang that his family would be killed if he did not do what he was told. He stated that he had also been informed that one of his sons has been shot in the hand. He then reiterated that "these men are deadly serious" Sometime later the accused told Mr. lacey that the van was parked at Merrion Church opposite St. Vincent's Hospital. He then explained that he had been apprehended by the gang at a health club in Crumlin; held in awful circumstances and he again stated his belief that the gang were holding his children.

16 Having left the house at 10.00 a.m. in Mr. Lacey's car, he drove the accused to the car park in front of Merrion Church where the latter pointed out a green van which was discreetly parked near a wall. The keys were on the driver's seat as arranged by the gang....