Flanagan v Judge Nolan

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 19 December 2014
• Neutral Citation: [2014] IEHC 627
• Court: High Court
• Date: 19 December 2014

[2014] IEHC 627

THE HIGH COURT

[No. 865 J.R./2012]

Bill No. DUCB0879/29011

Flanagan v Judge Nolan

JUDICIAL REVIEW

BETWEEN

DANIELLE FLANAGAN

APPLICANT

AND

JUDGE MARTIN NOLAN

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

"The Circuit Court, Dublin Circuit, County of Dublin

In the Matter of an Application Pursuant to Section 39 of the Criminal Justice Act 1994

The Director of Public Prosecutions

Applicant

And

The Estate of Gerard Grant

Respondents"

CRIMINAL JUSTICE ACT 1994 S39

CRIMINAL JUSTICE ACT 1994 S38

COURTS OF JUSTICE ACT 1947 S16

OFFENCES AGAINST THE STATE ACT 1939 S29

MISUSE OF DRUGS ACT 1977 S23

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

MISUSE OF DRUGS ACT 1977 S21

PROCEEDS OF CRIME (AMDT) ACT 2005 S21

CRIMINAL JUSTICE ACT 1994 PART V

CRIMINAL JUSTICE ACT 1994 PART VI

PROCEEDS OF CRIME (AMDT) ACT 2005 PART IV

PROCEEDS OF CRIME (AMDT) ACT 2005 S19

LYNDON v DISTRICT JUDGE COLLINS UNREP CHARLETON 22.1.2007 2009/33/8216 2007 IEHC 487

SISK v DISTRICT JUDGE O'NEILL & DPP UNREP KEARNS 23.3.2010 2010/47/11857 2010 IEHC 96

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR 2014 1 ILRM 225 2013/18/5315 2013 IESC 34

O'MAHONY v JUDGE BALLAGH & DPP 2002 2 IR 410 2001/19/5350

MISUSE OF DRUGS ACT 1977 S23(2)

CRIMINAL LAW ACT 1976 S9

DILLON v O'BRIEN & DAVIES 1887 20 LRI 300

DUNNE v DPP 2002 2 IR 3052002 2 ILRM 241 2002/7/1645 2002 IESC 27

MCLAUGHLIN v AVIVA INSURANCE (EUROPE) PLC 2012 ILRM 487 2012/32/9442 2011 IESC 42

POLICE (PROPERTY) ACT 1897

CRIMINAL JUSTICE ACT 1994 S38(1)(A)

CRIMINAL JUSTICE ACT 1994 S38(1)

JOHNSTON & CO v HOGG 1883 10 QBD 432

CONCISE OXFORD ENGLISH DICTIONARY 11ED 2006

MCKENNA v DEERY 1998 1 IR 62 1998/25/9929

CRIMINAL JUSTICE ACT 1994 S40

O'CONNOR v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP HEDIGAN 25.6.2008 2008/48/10439 2008 IEHC 205

Administrative & constitutional law – Judicial review – Director of Public Prosecutions –Jurisdiction – Whether order of respondent in respect of funds seized valid

Facts: The applicant”s father had been suspected of involvement in a tiger kidnapping. Having died abroad whilst on the run, an order was granted by the respondent in respect of funds seized from him. The applicant contended the respondent had failed to give reasons for his ruling, and that the funds were not seized properly.

McDermott J stated that the respondent had fully considered the matter and all parties were aware of the reasons for his decision. A long statement of reasons was not required in this case. In respect of the seizure, the Court was satisfied the funds were retained lawfully in respect of s 38 of the Criminal Justice Act 1994. In respect of the failure to state a case to the Supreme Court, the Court held the respondent”s decision was valid. The application, and any request for discretionary relief would therefore be dismissed.

1 JUDGMENT of Mr. Justice McDermott delivered on the 19th day of December 2014.

2 1. The applicant seeks an order of certiorari by way of judicial review to quash the order of the respondent made on 16 ^th July, 2012, in proceedings bearing Bill of Indictment No. DUCB0879/2011, and a declaration that the order of the respondent was made in excess of jurisdiction. The applicant was granted leave to apply for judicial review (Peart J.) on 15 ^th October, 2012, on the grounds set forth in para. (d) of the statement of grounds dated 2 ^nd July. These were:

3 i "(i) The respondent had no jurisdiction to make an order under s. 39 of the Criminal Justice Act 1994, as the cash the subject matter of the order had not been seized under s. 38 of the Criminal Justice Act 1994. The order was therefore made in excess of jurisdiction.

4 (ii) The respondent failed to discharge his duty to give reasons in ruling on the submissions made on behalf of the applicant. The applicant submitted to the respondent that there was no jurisdiction arising out of the absence of a seizure having been made under s. 38 of the 1994 Act. The respondent did not specifically rule on the issue but merely held that "in the interests of justice … the State are entitled to their money". In so doing, he failed to engage with the issues raised and merely held that the applicant's "remedy lies elsewhere". This represents a failure on the respondent to discharge the duty to give reasons.

5 (iii) The respondent failed to properly exercise (his) discretion under s. 16 of the Courts of Justice Act 1947, to state a case to the Supreme Court. The issue was pending before the respondent and the application to state a case related to an issue in which there were substantial, weighty and solid grounds which called for a decision of the Supreme Court on the issue."

Background

6 2. On 13 ^th March, 2005, a "tiger" kidnapping occurred during which the family members of a Securicor driver were forcibly detained by a number of raiders in their family home in Raheny. The family was taken to a wood known as Cloon Wood, County Wicklow, while the driver was forced to assist the raiders by delivering cash to them in return for the release of his family. When the driver went to work on 14 ^th March, 2005, he informed his fellow team members in the security transit van that his family had been abducted and showed them photographs of his family held by the raiders at gunpoint in their home. The driver and his colleagues obeyed the instructions given to him to leave the cash, a mobile phone given to him by the raiders, and the photographs of his family held by the raiders in the 'Angler's Rest' car park, Knockmaroon near Strawberry Beds, Dublin. The sum of €2,800,000 was stolen. The Securicor team raised the alarm by pressing the panic alarm in the security van at 10.00am.

7 3. The Garda Siochána, in the analysis of phone traffic to mobile phones belonging to the suspects associated with the crime, identified a number of phone numbers as being connected with the offence. Gerard Grant was believed to have been using a mobile phone connected with this offence, in a period of 24 hours surrounding the kidnapping and movements of the family and the transfer of money to the kidnappers. Mr. Grant received 17 calls on his phone from a Mark Farrelly who was convicted for the false imprisonment of the family and the robbery of money from Securicor by Dublin Circuit Court on 30 ^th July, 2009. The court notes that his conviction was set aside by the Court of Criminal Appeal on 24 ^th May, 2012.

8 4. Investigations also revealed that Mr. Grant made and received a considerable number of calls to and from other persons suspected of involvement in the robbery, including Jason Kavanagh and Alan Costello. Investigations also revealed that the phone connected with Mr. Grant was in the Raheny area on the night of the kidnapping and in the Castleknock area the following morning at around the time the money was handed over to the kidnappers at Strawberry Beds. The garda investigators believed that Mr. Grant remained in the driver's home with him overnight along with two other gang members, Jason Kavanagh and Mark Farrelly. The investigators also believed that Mr. Grant made two phone calls during the night from the house to another accused person believed to have been in Glencree with the other members of the family.

9 5. They obtained CCTV footage from a Shell petrol station in Beaumont on 5 ^th March, 2005, showing Mr. Grant putting a "top up" code into an identified mobile phone number. This topped up phone was given to the driver during his captivity in the family home so that he could speak to his wife at 2.35am on 14 ^th March. She was, at that stage, held captive at Cloon Wood, County Wicklow. The mobile phone used by her on that occasion was identified as belonging to one of the other accused persons in the Securicor robbery.

10 6. Mr. Grant is a native of Dublin and in 1996 was sentenced to ten years imprisonment for an armed robbery at an AIB Bank in Limerick. He was released on 21 ^st December, 2004.

11 7. On 27 ^th April, 2005, Detective Sergeant Kelly, accompanied by several gardai, called to 22, Glynn Avenue, Coolock, Dublin 5, the home of Gerard Grant, and pursuant to a search warrant issued under s. 29 of the Offences against the State Act 1939, searched the premises. Mr. Grant was arrested on suspicion of having unlawful possession of firearms at the driver's house in Raheny on 13 ^th March, 2005. He was interviewed at Whitehall garda station but maintained silence throughout his interviews.

12 8. On 2 ^nd February, 2006, a red Mitsubishi Lancer was intercepted by a garda unmarked patrol car. The driver of the car failed to pull over, initially, when requested by the gardai, eventually stopping in the middle of the road in a cul de sac into which he had driven. The passenger, Mr. Grant, got out of the car and was informed by Detective Garda Keith Horgan that he wished to search him and the vehicle under s. 23 of the Misuse of Drugs Acts 1977/ 1984. Detective Garda Horgan observed Mr. Grant swallow a number of tablets from a tissue and give the driver a "nod of his head" which the Detective interpreted as a signal that he was not going to cooperate with gardai. A struggle ensued between the driver of the car and the other garda present. Detective Garda Horgan, in an affidavit sworn on 4 ^th July, 2011, in support of the confiscation application described what happened:

13 2 "10. Suddenly, I observed Costello (the driver) becoming uncooperative with Sergeant Curtin and a struggle ensued between the two of them.

14 11. As I attempted to prevent Grant from swallowing any further tablets, a struggle ensued between us. He then became engaged in behaviour that was threatening and violent, shouting and roaring and resisting arrest,...