DPP v M.C.

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Fennelly,Mr. Justice Clarke
• Judgment Date: 09 April 2014
• Neutral Citation: [2014] IESC 28
• Docket Number: [S.C. No. 428 of 2012]
• Date: 09 April 2014

[2014] IESC 28

THE SUPREME COURT

Murray J.

Hardiman J.

Fennelly J.

Clarke J.

MacMenamin J.

[Appeal No: 428/2012]

DPP v C (M)

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor/Appellant

and

M.C.

Defendant/Respondent

CRIMINAL PROCEDURE ACT 1967 S34

OFFENCES AGAINST THE STATE ACT 1939 S30(3A)

CRIMINAL JUSTICE (AMDT) ACT 2009 S21

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S21

EXPLOSIVE SUBSTANCES ACT 1883 S4

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S15(4)

CRIMINAL JUSTICE (AMDT) ACT 2009 PART IV

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE ACT 2007 S50

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2(5)

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

CRIMINAL JUSTICE ACT 2007 S50(6)

CRIMINAL JUSTICE ACT 2007 S50(7)

CRIMINAL JUSTICE ACT 1984 S4(5A)

DODD & CUSH STATUTORY INTERPRETATION IN IRELAND 2008 213

DPP v HOWLEY 1989 ILRM 629 1988/4/995

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

DPP v GORMLEY & WHITE UNREP SUPREME 6.3.2014 2014 IESC 17

DPP, PEOPLE v KENNY 1990 2 IR 110

OFFENCES AGAINST THE STATE ACT 1939 S30(3A)(B)

OFFENCES AGAINST THE STATE ACT 1939 S30(3A)(A)

DELANEY v JUDGE COUGHLAN & ORS UNREP SUPREME 27.6.2012 2012/9/2492 2012 IESC 40

Criminal procedure – Arrest and detention – Admissibility of evidence – Appellant seeking consideration of the application of Offences Against the State Act 1939 s.30(3A) – Whether respondent"s custody was constitutionally unlawful

Facts: The defendant/respondent, Mr C, was arrested on suspicion of membership of an illegal organization. The arrest followed from a search of his home in 2010 where an electric grinder and ammonium nitrate was found. During custody Mr C was informed that questioning would turn from the membership to the explosives. Subsequently Mr C admitted responsibility for those items. Through this evidence of admission, Mr C was charged with possession of explosives. The trial went before the Special Criminal Court where it was held that the continued detention, subsequent to the change in questioning, was unlawful under Offences Against the State Act 1939 s.30(3A); the admissions were made when Mr C was in unlawful custody making them inadmissible. An acquittal followed. The prosecutor/appellant, D.P.P., referred a question of law under the Criminal Procedure Act 1967 s.34 to the Supreme Court concerning the manner in which the Special Criminal Court interpreted subsection 3A, which allows continued detention where there are reasonable grounds for believing that continued detention is necessary for the proper investigation of an offence other than the one to which the suspect"s detention relates.

Held by Clarke J that, having considered subsection 3A, the operative provision in his view is that, if the necessary conditions are met, the relevant person may continue to be detained. The case made by D.P.P. was that a different situation pertains where suspicion in respect of the new offence is not in substitution for a suspicion relating to the original offence, but rather in addition to the suspicion in respect of the earlier offence, hence 3A has no application in this case as the original basis for the arrest still subsists. Mr C argued that 3A mandatorily applies to any case where it is desired to continue detention in respect of another offence. Clarke J stated that 3A is permissive rather than mandatory in its terms, allowing continued detention in certain circumstances. The subsection therefore permits continued detention on suspicion of a second offence when the appropriate opinion of the garda has been reasonably formed. Clarke J was satisfied that the position to be taken to have pertained before 3A, as stated in D.P.P. v. Howley [1989] I.L.R.M. 629, was that a suspect was entitled to be released as soon as the suspicion which justified the arrest had disappeared. As the original suspicion continued to be held, there was no basis why the suspect could not be asked questions during the relevant period of detention which related to some other offences. Clarke held that such questioning would not have rendered the custody of Mr C unlawful; 3A was designed to permit continued detention where it would not otherwise be lawful in respect of the second offence where suspicion of the first had disappeared. Hence the continued detention was permitted.

Clarke J held that the argument of D.P.P. was correct and that the Special Criminal Court was incorrect in the approach which it adopted regarding the lawfulness of Mr C"s detention; the Special Criminal Court wrongly concluded that subsection 3A applied where the suspicion underlying the original arrest still subsisted. This view is without prejudice to the acquittal by the Special Criminal Court of Mr C.

Judgment approved.

1 JUDGMENT of Mr. Justice Fennelly delivered the 9th day of April, 2014.

2 Judgment of Mr. Justice Clarke delivered the 9th April, 2014.

3 Judgments delivered by Fennelly J. & Clarke J.

4 1. The Director of Public Prosecutions (hereinafter "the Director") has, pursuant to s. 34 of the Criminal Procedure Act 1967, referred to this Court a question of interpretation of s. 30(3A) of the Offences Against the State Act 1939 ("the Act of 1939"), as inserted by s. 21 of the Criminal Justice (Amendment) Act 2009. Section 34 of the Act of 1967 provides as follows:

5 (1) Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial judge, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination.

6 (2) The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add.

7 (3) The Supreme Court shall assign counsel to argue in support of the decision.

8 2. The question referred is necessarily one of law which has led to the acquittal of a person. In the present case, the respondent was acquitted by order of the Special Criminal Court on an interpretation of s. 30(3A) of the Offences against the State Act 1939.

9 3. The trial of the respondent took place in the Special Criminal Court over four days in November 2011 on a single count of unlawful possession of an explosive substance. The only evidence against him was a statement of admission made in answer to garda questions while he was detained pursuant to the provisions of the Act of 1939. On 29 ^th November that Court gave its ruling acquitting him. The reason for the decision was that, in the opinion of the Court, the Respondent had been in unlawful custody when he made the statements of admission. The circumstances in which those statements were made needs, therefore, to be described.

10 4. On the 11 ^th September 2010 the Respondent was arrested by a member of the Garda Síochána pursuant to s. 30 of the Act of 1939 on suspicion that he was a member of an unlawful organisation contrary to the provisions of s. 21 of that Act. This arrest followed a search of the respondent's home during which the Gardaí discovered an electrical grinder and a quantity of ammonium nitrate, an explosive material. The respondent was taken to Monaghan Garda Station. He was introduced to the member in charge and detained. The member in charge was informed that the respondent had been arrested on suspicion of membership of an unlawful organization.

11 5. At first the respondent was questioned in relation to the membership charge. At a certain stage during his detention, he was informed that he was then going to be questioned in relation to the explosives that had allegedly been found at his home. Having initially declined to answer any questions, he changed his position and made a statement in which he accepted responsibility for possession of both the electric grinder and the explosive (ammonium nitrate). This was the evidence on which the prosecution relied.

12 6. Counsel on behalf of the Respondent argued that his detention had become unlawful at the point at which the Gardaí commenced to question him about an offence other than the one for which he had been arrested, namely membership of an unlawful organisation. Counsel argued that, if the Respondent was going to be questioned about another suspected offence, it was essential that the Gardaí comply with the provisions of section 30(3A) of the Act of 1939, which had not been done.

13 7. Counsel for the Director argued that compliance with s. 30(3A) was not required. The Gardaí, it was argued, had the right to question the respondent about any offence as long as they continued to hold the reasonable suspicion that he was a member of an unlawful organization.

14 8. The Court ruled that the Respondent's detention for the purpose of questioning him about the possession of explosive substances, being an offence other than the one of which he had originally been suspected and which formed the basis for his arrest and detention, was not lawful, in the absence of compliance with the requirements of s. 30(3A) of the Act. The Court, therefore, ruled that the respondent's confession was inadmissible.

15 9. It is in the context of that ruling of the Special Criminal Court, that the Director has referred a question of law to this Court. That question, corrected for a number of typographical errors, reads:

"WHEREAS the defendant stood trial before the Special Criminal Court on Bill of Indictment SCC 12/2010 charging one count of unlawful possession of an explosive substance contrary to Section 4 of the Explosive...