DPP v McGilloway

• Jurisdiction: Ireland
• Judge: Mr. Justice Coffey
• Judgment Date: 14 December 2017
• Neutral Citation: [2017] IEHC 761
• Docket Number: [2017 No. 1128 S. S.]
• Court: High Court
• Date: 14 December 2017

[2017] IEHC 761

THE HIGH COURT

Coffey J.

[2017 No. 1128 S. S.]

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA PATRICK CUNNINGHAM)

PROSECUTOR

AND

ROBERT MCGILLOWAY

ACCUSED

Crime & Sentencing - S. 52(1) of the Courts (Supplemental Provisions) Act 1961 - Case stated - Garda opinion - S.4 (5) of the Criminal Justice Act, 1984

Facts: The present case came by way of a case stated by the District Court judge for the opinion of the High Court. The District judge posed questions related to the validity of the garda to detain the accused in lieu of the requirement for releasing the accused 'forthwith' upon the conclusion of an investigation of an offence under s. 4 of the Criminal Justice Act, 1984 after the direction to charge the accused had been given. The District Court judge also posed the questions in relation to the time for charging the accused.

Mr. Justice Coffey held that the detention of the accused under s. 4 of the 1984 Act did not amount to an unconstitutional encroachment on the liberty of the accused after the investigation had been concluded and the direction was given to charge the accused. The Court held that the word 'unless' did not qualify the necessity for the gardai to act immediately. The Court held that the words 'charge or case to the charged' gave the gardai a reasonable amount of time to research and prepare the necessary wording for the actual charge. The Court noted that even if there was a defect in the manner in which the gardai arrested or detained the accused and there was no intention to charge the accused forthwith, the District Court was not deprived of its jurisdiction to try the accused.

JUDGMENT of Mr. Justice Coffey delivered on the 14th day of December, 2017.

1 This is a consultative case stated by Judge Kelly of the District Court pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act, 1961.

2 At issue is the meaning and effect of s. 4(5) of the Criminal Justice Act, 1984 and the legal consequences that follow from a failure to comply with its provisions.

Background

3 On the 16th February, 2016, the accused appeared before the District Court at Carndonagh, Co. Donegal charged with arson contrary to s. 2 of the Criminal Damage Act, 1991.

4 At the commencement of the hearing, counsel for the accused raised a preliminary issue as to the jurisdiction of the District Court. It was contended that having terminated the accused's detention pursuant to s. 4(5) of the Criminal Justice Act, 1984 ('the Act'), the gardai were obliged to charge the accused 'forthwith' which they failed to do, which it was argued tainted with illegality his subsequent detention, charging, admission to station bail and appearance before the District Court such as to deprive the District Court of jurisdiction to embark upon his trial.

5 The case stated discloses that the arresting officer, Garda Cunningham gave evidence to the District Court on the 16th February, 2016 as follows:

'(a) The accused was arrested on the 7th November, 2014 and detained under s. 4 of the Criminal Justice Act, 1984 for questioning in Buncrana Garda Station.

(b) The interview of the accused finished at 21.33 on the 7th November, 2014.

(c) The Superintendent directed Garda Cunningham to a charge the accused at 21.43 on the 7th November, 2014. He told Garda Reid, after receiving directions that he wanted to terminate the detention of the accused and re-arrest him for the purpose of charge pursuant to s. 10(2) of the Criminal Justice Act, 1984.

(d) The accused was returned to a cell at 21.51 and remained there until 22.50 at which time he was released from his detention under s. 4 of the Criminal Justice Act, 1984 and charged with the offence. That was the time it took to prepare the charge, to get the court date, and have the charge sheet printed.

(e) Garda Cunningham stated that it was normal practise to hold an accused in a cell while preparing a charge sheet.

(f) Garda Cunningham stated that there was an issue in relation to printing the charge sheet as he was not normally stationed in Buncrana but in Muff and the printers in Buncrana required a pin code. He had to get another member to go inter Pulse and enter a code for the printer.

(g) Garda Cunningham stated that the accused cooperated with the gardai.

(h) Garda Cunningham stated that there was no staff meal break between 21.43 and 22.50.'

6 The Member in Charge, Garda Reid gave evidence to the court on the 17th February, 2016 which is set out in the case stated as follows:

'(i) Garda Reid gave evidence that between 21.43 and between 21.51 the accused was in custody area at the desk or sitting in a chair.

(ii) At 22.50 Garda Reid informed the prisoner that he was released from detention under s. 4 and was now being held for the purpose of charge;

(iii) Garda Reid stated that the accused was placed in a cell to maintain safe custody of the accused.

(iv) Garda Reid stated that there was an issue with the printer requiring a pin code and indicated that his pin code may have been used to print the charge.

(v) Garda Reid stated that the accused was retained in custody to be charged.

(vi) Garda Reid stated that he was aware that Garda Cunningham was preparing charges, and also that there was a difficulty with Garda Cunningham using the printer in Buncrana Garda Station.

(vii) Garda Reid stated that he placed the accused in a cell for safe keeping, and to ensure that he did not escape, and that it was normal procedure when a person was not being interviewed that he would be placed in a cell. In the case of the accused, he stated that he was retained in custody to be charged and because he believed he was resident in Northern Ireland, as there were two addresses in his custody record, one in Northern Ireland.

(viii) Garda Reid stated that there was no other prisoners/accused in custody or in the Garda Station on the night of the 7th November, 2014.'

7 On the 18th July 2017 the learned judge heard submissions from the State Solicitor for County Donegal who argued that the issue raised by the accused was dealt with by the judgment of the High Court (Ryan J.) in Broe v. DPP [2009] IEHC 549. The learned judge states that:-

'(he) held that, as in Broe, there was in fact no breach of the constitutional rights of the accused. He was lawfully arrested, he was to be charged and brought before the District Court as soon as practicable, and this is what happened. The only issue (was) the timing of the presentation of the charges to him, and in the light of the decision in Broe, (he) held that (the accused) was lawfully before the court notwithstanding the delay in charging him'.

8 Against this background, the...