DPP v O'Shea

• Jurisdiction: Ireland
• Judgment Date: 01 July 1996
• Date: 01 July 1996
• Docket Number: [C.C.A. No. 4 of 1995]
• Court: Court of Criminal Appeal

Court of Criminal Appeal

[C.C.A. No. 4 of 1995]

The People (Director of Public Prosecutions) v. O'Shea

The People (Director of Public Prosecutions)

and

Jerry O'Shea

Cases mentioned in this report:—

The People (Director of Public Prosecutions) v. Boylan [1991] 1 I.R. 477.

In re Ó Laighléis ó laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

The People v. Kehoe [1985] I.R. 444; [1986] I.L.R.M. 490.

The State (Walsh) v. Maguire [1979] I.R. 372.

Criminal law - Arrest - Applicant arrested by customs officer - Whether subsequent arrest by garda valid while applicant still under initial arrest.

Criminal law - Custody Regulations - Member in charge - Inculpatory statement made while in custody - Whether member in charge properly appointed - Whether breach of Custody Regulations - Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119), art. 4 - Criminal Justice Act, 1984 (No. 22), s. 7, sub-s. 3.

Criminal appeal.

The facts have been summarised in the headnote and are fully set out in the judgment of the Court of Criminal Appeal, infra.

On the 28th November, 1994, following a trial before the Wexford Circuit Criminal Court (His Honour Judge Sheridan and a jury), the applicant was convicted of importing controlled drugs and sentenced to eight years imprisonment.

By notice of application for leave to appeal, dated the 16th December, 1994, the applicant sought leave to appeal against conviction.

Section 186 of the Customs Consolidation Act, 1876, as amended, provides, inter alia, that:—

"Every person who shall import or bring, or be concerned in importing or bringing into the [State] any prohibited goods or any goods the importation of which is restricted, contrary to such prohibition or restriction, . . . shall for each such offence . . . either be detained or proceeded against by way of summons."

Section 25, sub-s. 1 of the Misuse of Drugs Act, 1977, provides:—

"Where with reasonable cause a member of the Garda Síochána suspects that an offence under s. 15 of this Act has been committed and so suspects a person of having committed the offence, he may arrest the person without warrant."

Section 15, sub-s. 1 of the Act of 1977, provides:—

"Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under s. 5 of this Act, shall be guilty of an offence."

The application for leave to appeal was heard by the Court of Criminal Appeal (Blayney, Kinlen and McCracken JJ.) on the 13th May, 1996.

Article 4 of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, provides:—

"(1) In these regulations 'member in charge' means the member who is in charge of a station at a time when the member in charge of a station is required to do anything or cause anything to be done pursuant to these Regulations.

(2) The superintendent in charge of a district shall issue instructions in writing from time to time, either generally or by reference to particular members or members of particular ranks or to particular circumstances, as to who is to be the member in charge of each station in the district.

(3) As far as practicable, the member in charge shall not be a member who was involved in the arrest of a person for the offence in respect of which he is in custody in the station or in the investigation of that offence.

(4) The superintendent in charge of a district shall ensure that a written record is maintained in each station in his district containing the name and rank of the member in charge at any given time."

Section 7, sub-s. 3 of the Criminal Justice Act, 1984, provides:—

"A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him."

Two hundred kilos of cannabis resin, a controlled drug, were found in an articulated lorry which was stopped and searched by customs officers at the port of Rosslare. The applicant, the driver of the lorry, was arrested by a customs officer on suspicion of having committed an offence contrary to s. 186 of the Customs Consolidation Act, 1876. The Garda Síochána at Wexford were contacted and on arrival a member of the Garda Síochána arrested the applicant...