DPP v Walsh

• Jurisdiction: Ireland
• Judgment Date: 01 January 1988
• Date: 01 January 1988
• Docket Number: [C.C.A. No. 86 of 1984]
• Court: Supreme Court

The People (D.P.P.) v. Walsh

The People (at the suit of The Director of Public Prosecutions)

and

Patrick Walsh (otherwise called Pa Ned Walsh)

[C.C.A. No. 86 of 1984]

Court of Criminal Appeal

Supreme Court

Criminal law - Arrest - Validity - Scheduled offence - Minor amount of malicious damage done in the course of the commission of a murder - Arrest on suspicion of having committed offence of malicious damage - No evidence of terrorist or subversive motive - Arresting officer anxious to interrogate suspect with regard to murder - Suspicion justified - Arrest and detention lawful - Malicious damage part of actus reus of murder - Admissibility of statement made by accused - Scope of questioning permitted - Offences Against the State (Scheduled Offences) Order, 1972 (S.I. No. 142) - Offences Against the State Act, 1939 (No. 13), ss. 30, 36.

Sub-section 1 of s. 30 of the Offences Against the State Act, 1939, empowers a member of the Garda Síochána to arrest and interrogate any person whom the member suspects of having committed an offence scheduled for the purposes of the Act. By the Order of 1972 the Government declared offences under the Malicious Damage Act, 1861, to be scheduled offences.

An elderly lady was found murdered in the kitchen of her home. She had suffered multiple injuries and a severe head wound which was the cause of her death. The kitchen was connected to a small shop by a glass door. The door had been in good repair the previous evening but a pane of glass was found to be broken. Outside the premises a heavy metal pot, which was probably the main murder weapon, was found to be broken.

Subsequently, the appellant was arrested by a member of the Garda Síochána, under s. 30 of the Offences Against the State Act, 1939, on suspicion of having committed a scheduled offence, namely malicious damage to the pane of glass and the pot. It was not contested that the member had grounds for suspecting the appellant of having been involved in that crime. The arresting member gave evidence that while the appellant was arrested on that suspicion, he was anxious to question him concerning the killing of the old lady. No evidence was given of any subversive or terrorist motive in the crime.

Pursuant to that arrest the accused was detained and questioned and made statements, some of which were admitted in evidence. He was charged with murder and malicious damage but was indicted and tried only for murder.

The appellant appealed from his conviction in the Central Criminal Court to the Court of Criminal Appeal pursuant to a certificate of leave to appeal granted by the trial judge, on the grounds, firstly, that s. 30 of the Act of 1939 should be interpreted having regard to the long title and other provisions of the Act to the effect that the right of arrest only arose when a person was suspected of having committed a scheduled offence for subversive motives; and secondly, that having regard to the seriousness of the crime of murder being investigated and the relatively trivial amount of malicious damage, the exercise of the power under s. 30 of the Act of 1939 was a colourable device only and rendered the arrest unlawful. On the hearing of the appeal it was further argued on behalf of the appellant that a person arrested under s. 30 on suspicion of having committed a scheduled offence could only be questioned about that precise offence and not any other offence.

Held by the Court of Criminal Appeal (Finlay C.J., Egan and Barr JJ.), in dismissing the appeal, 1, that while it was clear from the terms of s. 36, sub-s. 1 of the Act of 1939 that it would have been open to the Government to declare that a particular class or kind of offence, such as an offence with a particular terrorist or other motive, would be a scheduled offence; or to declare that offences against the Malicious Damage Act, 1861, which were carried out with a subversive or terrorist motive, would be scheduled offences; what in fact was scheduled under the Act of 1939 were all offences under the Act of 1861.

2. That an offence against the Act of 1861 came within the precise and unequivocal definition of an offence scheduled for the purposes of the Act of 1939 and that, as such, it was coercive to construe s. 30 as entitling a member of the Garda Síochána to arrest, without warrant, a person whom he suspected of having committed such an offence.

3. That the terms of s. 30 were clear and unambiguous and that there was no room for interpolating into that meaning and definition of a scheduled offence a qualification arising either from the long title or other provisions of the Act.

4. That, having regard to the amount of the damage caused and to the place, circumstances and time at which it was alleged to have been caused, the offence of malicious damage suspected was a real offence and was necessarily involved as part and parcel of the same incident or transaction as the murder and, accordingly, the arrest was justified.

The State (Bowes) v. Superintendent Fitzpatrick (Unreported, High Court, Finlay P., 1st November, 1978); The People (D.P.P.) v. Towson (Unreported, Court of Criminal Appeal, 5th July, 1978), considered.

5. That in a case where the act of malicious damage on suspicion of which the accused was arrested clearly formed part and parcel of the series of incidents involved in the murder of the deceased, at least, there were no grounds for inhibiting or restricting the right of the Gardaí to interrogate the appellant with regard to the entire transaction, including the murder.

On appeal by the appellant, the Court of Criminal Appeal having certified that its decision involved points of law of exceptional public importance, it was

Held by the Supreme Court (Walsh, Henchy, Griffin, Hederman and McCarthy JJ.), in dismissing the appeal, 1, that the power of arrest conferred by s. 30 of the Act of 1939 was exercisable against any person bona fide suspected of having committed a scheduled offence, whether or not such offence was suspected to have been political or subversive in motive.

The People (D.P.P.) v. Quilligan [1986] I.R. 495 applied.

2. That neither the disproportion between the nature of two offences nor the concentration of the investigation on the more serious was, by itself, sufficient to establish a reasonable probability that the arrest in respect of the malicious damage was simply a colourable device to hold the accused in custody to question him in relation to the murder.

3. That the true test to be applied in determining the validity of the arrest under s. 30 of the Act of 1939 was whether, on the evidence, the Garda Síochána had a genuine interest in the malicious damage and a desire to...