Finnegan v Member in Charge (Santry Garda Station)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE O'NEILL
• Judgment Date: 08 March 2006
• Neutral Citation: [2006] IEHC 79
• Docket Number: 266ss/2006,[2006 No. 266 SS]
• Court: High Court
• Date: 08 March 2006

[2006] IEHC 79

THE HIGH COURT

DUBLIN

266ss/2006

FINNEGAN v MEMBER IN CHARGE (SANTRY GARDA STATION)

Applicant

JEFFREY FINNEGAN

Respondent

MEMBER IN CHARGE (SANTRY)

CONSTITUTION ART 40.4

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S30(4)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S10

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

OFFENCES AGAINST THE STATE ACT 1939 S30(4)(c)

OFFENCES AGAINST THE STATE ACT 1939 S30(a)(1)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S11

O'BRIEN v DPP 2005 2 ILRM 444

OFFENCES AGAINST THE STATE ACT 1939 S30(4)(a)

OFFENCES AGAINST THE STATE ACT 1939 S30(4)(b)

OFFENCES AGAINST THE STATE ACT 1939 S30(4)(c)

CRIMINAL JUSTICE ACT 1984 S8(a)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S2

CRIMINAL JUSTICE ACT 1984 S9

LAVOLE & CARVIDA LTD v JUDGE O'DONNELL & ORS UNREP HIGH COURT 3.3.2005 2005/36/7393

FISHERIES (CONSOLIDATION) ACT 1959 S233

FISHERIES (CONSOLIDATION) ACT 1959 S234

FISHERIES (CONSOLIDATION) ACT 1959 S233(a)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S2(c)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S2(d)

CRIMINAL JUSTICE ACT 1984 S9

CRIMINAL JUSTICE ACT 1984 S4(8)(a)

CRIMINAL JUSTICE ACT 1984 S4(9)

CONSTITUTIONAL LAW Personal rights Liberty - Detention - Application for warrant for extension of detention period - Lapse of statutory detention period during court hearing - Whether detention infringed constitutional rights - Whether detention lawful -- Interpretation - Strict and literal interpretation applied - Whether intention of legislature clear - Whether applicant entitled to be released at end of 48 hour period - Whether court having jurisdiction to issue warrant for further detention - Offences Against the State Act 1939 (No 13), s 30 - Criminal Justice Act 1984 (No 22), s 4 - Constitution of Ireland 1937, Article 40.4 - Release of applicant ordered (2006/266SS - O'Neill J - 8/3/2006) [2006] IEHC 79 Finnegan v Member on Charge (Santry)

Facts: Section 30 of the Offences Against the State Act 1939, as amended, provides, inter alia, that: "(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours. (4) An officer of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for a warrant authorising the detention of a person detained pursuant to a direction under subsection (3) of this section for a further period not exceeding 24 hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned".

Section 4(8A) of the Criminal Justice Act 1984, as amended, provides, inter alia, that: "where a person is detained pursuant to subsection (2) is taken to a court in connection with an application relating to the lawfulness of his detention, the time during which he is absent from the station for that purpose shall be excluded in reckoning a period of detention permitted by this section."

Section 9 of the Act of 1984 provides, inter alia, that: "sections 4(8), 5, 6(2) and 6(3) shall apply...in relation to persons in custody under section 30 of the Act of 1939...as they apply to persons detained pursuant to section 4 of this Act."

The applicant had been arrested and detained pursuant to s. 30 of the Act of 1939, as amended, for a total period of 48 hours, which period began at 10.55 p.m. on the 5th March, 2006. The gardaí applied to the District Court, pursuant to s. 30(4) of the Act of 1939, as amended, for a further extension of the detention of the applicant, which application commenced before the end of the 48 hour period of detention authorised by s. 30(3) of the Act of 1939. Nevertheless, it was not until 11.20 p.m., some 30 minutes after the expiry of the original 48 hour period of detention, that the District Court made its order and issued a warrant authorising the further detention of the applicant. Following that, the applicant sought an inquiry under Article 40.4 of the Constitution into the legality of his detention on foot of the said warrant. He contended, inter alia, that he had been entitled to be released at 10.55 at the end of his 48 hour period of detention and the fact that he had not, deprived the District Court of its jurisdiction to issue the warrant for his further detention.

Held by Mr Justice O'Neill in ordering the release of the applicant that it was a prerequisite for the exercise by the District Court of its jurisdiction to grant an extension for detention pursuant to s. 30(4)(a) of the Act of 1939 that there was a continuing lawful detention pursuant to s. 30(3) and neither the commencement of the court proceedings nor the subsequent order of the District Court could have prevented the expiry of the period of detention during the hearing, as s. 4(8A) of the Criminal Justice Act 1984 did not apply to the detention of the applicant and therefore the necessary jurisdictional basis for the granting of the warrant for a further period of detention had gone. That criminal statutes had to be construed strictly and given their ordinary and natural meaning and that statutory periods of detention could not be extended by court orders or by anything the court could do.

Reporter: P.C.

1 MR. JUSTICE O'NEILLON WEDNESDAY. 8TH MARCH 2006

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Applicant:

MR. MICHAEL O'HIGGINS SC

MR. SEAN GILLANE BL.

Instructed by:

Ferrys.

Solicitors,

Unit 3a

Northside shopping

Centre

Coolock,

DUBLIN 5

For the Respondent

MR.MICHAEL O'HIGGINS BL

Instructed by:

MS. JULIE LANE

CHIEF STATE SOLICTOR

OSMOND HOUSE

LITTLE SHIP STREET

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

MR. JUSTICE O'NEILL DELIVERED HIS RULING TO THE COURT AS FOLLOWS

4 MR. JUSTICE O'NEILL: This is an inquiry pursuant to Article 40.4 of the Constitution. Earlier today I directed that this inquiry should take place. The facts which are the substrata of this application are as follows and are not, apart from minor respects, in dispute.

5 The applicant was arrested at 10.55 pm on 5th march this year under Section 30 of Offences Against the State Act 1939. At the end of the 24 hour period of detention as provided for in the Act his period of detention was extended for a further period of 24 hours, and no challenge is made to the lawfulness of that extension.

6 Towards the latter part of his second period of detention a conference - and I accept Chief Superintendent Maguire's evidence in this regard - took place to review the state of the investigation and a decision was taken to apply to the District Court pursuant to section 30(4) of the Act of 1939 as inserted by section 10 of Offences Against the state Amendment Act of 1998 for a further extension of the detention of the Applicant for up to 24 hours.

7 In addition to the Applicant in this case a similar decision was taken in respect of another person. Arrangements were made with the District Court and the relevant parties arrived down to the District Court. It appears that the case of the other man was taken first and that took some time. It was then after the conclusion of his case, which was a similar application to that being made in respect of this Applicant, that the application in respect of this Applicant commenced.

8 It was chief superintendent Maguire's evidence that it commenced at 10.35, but I think he may have been slightly mistaken there. The warrant authorising detention which was issued by the District court subsequently under the signature of the district judge recorded the application commencing at 10.26 pm, and indeed that is the time recorded by Ms. Banbury, the solicitor for the Applicant in this case. It may very well be the difference is explained by the fact that the clock in the court was fast. It is an immaterial difference no matter what way one approaches the case it would not make any difference in any event.

9 In the course of the application for this Applicant, which appears to have been conducted expeditiously, all of the relevant proofs which are required by section 30(4) were tendered, and this all appears to have been done with considerable expedition.

10 Nevertheless it was not until 11.20 that the District court made its order and issued a warrant authorising detention. That warrant is of extreme importance to the case and it reads, or the important part of it reads as follows:

"whereas on the Applicant the application of 7th march 2006 by superintendent Noel McLoughlin of An Garda síochana, coolock, Dublin 5 for a warrant, a warrant authorising the detention of Jeffrey Finnegan of 2 Rathfilly Drive, Finglas a person who was on 5th day of march 2006 arrested under section 30 of the Offences Against the State Act 1939 and who is at present detained in custody pursuant to the provisions the sub-section three of that section I, a judge e of the District Court, am satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and...