Kane v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J
• Judgment Date: 11 May 1988
• Neutral Citation: 1988 WJSC-SC 1416
• Court: Supreme Court
• Docket Number: [S.C. No. 19 of 1988]
• Date: 11 May 1988

1988 WJSC-SC 1416

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

19/88

KANE v.GOV OF MOUNTJOY PRISON

PAUL ANTHONY KANE

Applicant/Appellant

and

THE GOVERNOR OF MOUNTJOY PRISON

Respondent

Citations:

CONSTITUTION ART 40.4

TRIMBOLE, STATE V GOV MOUNTJOY PRISON 1985 IR 567

CONSPIRACY & PROTECTION OF PROPERTY ACT 1875 S7

KANE, STATE V GOV OF MOUNTJOY PRISON UNREP EGAN 21.12.87 1988/3/343

EXTRADITION ACT 1965

Synopsis:

CONSTITUTION

Personal rights

Liberty - Privacy - Detention - Meaning - Police - Close overt surveillance - Justification - The appellant was arrested at 1.12 p.m. on 23/11/87 and detained for 48 hours pursuant to s. 30 of the Act of 1939 - He was found hiding in the attic of a house and firearms and ammunition were later found nearby; during that period he was visited by a solicitor and, at the end of it, he revealed his name but refused to state his address - At the end of that period he was released but was thereafter kept under intense overt surveillance by members of the Garda Siochana - Shortly after the appellant's release from detention at 1 p.m. on 25/11 the Gardai received information from Northern Ireland that on 25/9/83 the appellant had escaped from a prison there, and they also received a request that they should obtain a provisional warrant under s. 49 of the Act of 1965 for the arrest of the appellant - After the appellant's release he was followed by gardai wherever he went, but he was not prevented from going anywhere he wished - He travelled to Cavan in a car which was being used by a B.B.C. television crew - In Cavan he visited a solicitor and then went to a friend's house nearby in the friend's car - The appellant and his friend then walked back to Cavan and returned to the friend's house - The appellant was joined by persons who were identified by gardai as members or supporters of an unlawful organisation - The appellant started to walk to Cavan again with four or five persons but, after walking for some distance, he got into a car which was driven away at great speed - Two garda cars were prevented from following the appellant's car immediately because the driver of another car was deliberately blocking the road - One of the garda cars eventually drove round the obstruction, overtook the appellant's car (which was being driven at great speed and dangerously) and stopped it - The appellant was re-arrested at 6.20 p.m. on 25/11/87 after he had assaulted a garda - At 8 p.m. of the same day the Gardai obtained from a District Justice a provisional warrant for the arrest of the appellant pursuant to s. 49 of the Act of 1965 - In the morning of the 26/11 the appellant was charged with the assault, remanded on bail and released; whereupon he was arrested in execution of the provisional warrant, brought before the District Court and remanded in custody - The appellant was being detained pursuant to an extradition warrant - The High Court, having enquired into the appellant's complaint that he was being detained unlawfully, dismissed the complaint - At the hearing of an appeal by the appellant, he submitted that the extent and nature of the surveillance conducted by the Gardai amounted in law to an unlawful continuance of his detention after 1 p.m. on 5/11/87 - He also submitted that the said surveillance amounted to unlawful harassment and an offence under s. 7 of the Act of 1875, and that it constituted an infringement of his constitutional right to privacy and freedom of movement - He submitted, accordingly, that his arrest had been unlawful - Held, in disallowing the appeal, that the surveillance of the appellant did not amount to a continued detention until his arrest for assault - Held that the surveillance kept by the Gardai on the appellant from 1 p.m. to 6.20 p.m. on 25/11/87 was of a nature and degree which required to be justified in order to be lawful - Held that the surveillance of which the appellant complained was justified by the circumstances existing at that time - ~Quaere~: Whether the standard of the duties of a garda who is investigating or detecting a crime differs from the standard applicable to the duties of a garda who is executing an extradition warrant - Article 40 - Conspiracy and Protection of Property Act, 1875, s. 7 - Offences Against the State Act, 1939, s. 30 - Extradition Act, 1965, s. 49 - (19/88 - Supreme Court - 11/5/88) - [1988] I.R. 757 - [1988] ILRM 724

|State (Kane) v. Governor of Mountjoy Prison|

CRIMINAL LAW

Suspect

Surveillance - Degree - Justification - Legality - Duties of gardai - Close overt watch - Preparation for execution of extradition warrant - ~See~ Constitution, personal rights - (19/88 - Supreme Court - 11/5/88) - [1988] I.R. 757 [1988] ILRM 724

|State (Kane) v. Governor of Mountjoy Prison|

GARDA SIOCHANA

Suspect

Surveillance - Degree - Justification - Legality - Close overt watch - Preparation for execution of extradition warrant - ~See~ Constitution, personal rights - (19/88 - Supreme Court - 11/5/88)

|State (Kane) v. Governor of Mountjoy Prison|

GARDA SIOCHANA

Members

Duties - Performance - Standard - Uniform level - Diverse activities - ~See~ Constitution, personal rights - (19/88 - Supreme Court - 11/5/88) - [1988] I.R. 757 - [1988] ILRM 724

|State (Kane) v. Governor of Mountjoy Prison|

WORDS & PHRASES

"Detention"

Suspect - Release - Surveillance - Freedom of movement - Close overt watch - Justification - Suspect followed wherever he went - No restriction on suspect's movements - Preparation for execution of extradition warrant - Surveillance not equivalent to continued detention - ~See~ Constitution, personal rights - (19/88 - Supreme Court - 11/5/88) - [1988] I.R. 757 - [1988] ILRM 724

|State (Kane) v. Governor of Mountjoy Prison|

1 JUDGMENT delivered on the 11th day of May 1988by FINLAY C.J.[Henchy, Griffin conc.]

2 This is an appeal by the applicant against the decision of Egan J. in the High Court, delivered on the 21st day of December 1987, after an enquiry had been had pursuant to Art. 40(4) of the Constitution, determining that the applicant was being detained in accordance with law.

3 On the morning of the 23rd November 1987, a country-wide search was carried out by the Garda Siochana with the assistance of the Army, for unlawful arms, believed to be hidden by subversive elements andbelieved to represent a major threat to the security of the State. In the course of that search in the Country of Longford, a house near Moyne was found to contain certain I.R.A. manuals and two sleeping-bags, and it was reported that immediately before the Gardai had arrived to search the house, two men who were unidentified were seen to leave it. In an immediately adjoining house upon a search being carried out, the appellant together with another man were observed hiding in an attic, and upon being seen by the Gardai said "don't shoot, we are unarmed", came down from the attic and were both arrested pursuant to s. 30 of the offences Against the State Act. The appellant was arrested on suspicion of being a member of the I.R.A. Upon being brought to Granard Garda station after that arrest, the appellant for a period of approximately twenty hours refused to give his name or address or to answer any questions. At his request he was visited by a solicitor of his choice and subsequent to that gave his name, but refused to give any more detailed address than Belfast. On the morning ofthe 24th of November, firearms and ammunition were found concealed in a burrow, covered over with earth close to the house in which the I.R.A. manuals and sleeping-bags had been found, and therefore, close also to the house in which the appellant was found. The detention of the appellant pursuant to s. 30 of the Offences Against the State Act was duly extended by a certificate of the Chief Superintendent, and the appellant was eventually permitted to leave Granard Garda station shortly after 1 o'clock on the 25th of November 1987.

4 The applicant was walking down the street of Granard, when he was spoken to by a lady representing the B.B.C., who was with a television crew. He apparently took a lift with her and her companions in the car which they were driving and was, at his request, driven to Cavan, a distance of about thirty miles. On their way, their car with all others was stopped at a Garda check-point, which was part of the overall search operation and upon the boot being examined and found to contain nothing of anyharmwas permitted to go on. The car in which the appellant travelled from Granard to Cavan was followed by two Garda Cars.

5 On arrival at Cavan, at his own request the was dropped in the main street, and having spoken to a passer-by, apparently enquiring for the office of some solicitor, he was directed to the office of a Mr. Dunne. Mr. Dunne's offices were one of several different professional offices situated in a single building with common stairs and landings.

6 Upon the appellant entering that office, members of the Garda Siochana followed him, and remained on the stairs or landing, while other members of the Gardai remained on the street outside the front door.

7 The appellant remained for some time in the office where he was joined by a Mr. McKeown who was a friend of his and who lived a short distance outside Cavan town at a place known as Swellen.

8 Later the appellant and Mr. McKeown left the office together and drove in Mr. McKeown car to hishouse in Swellen.

9 They were followed on that journey by two Garda cars, which upon arrival at the house were parked outside, and the guards who had been driving in them, then surrounded the house, some members standing on the road in front of it and others down a lane way at the side of it, where they could have a view of the rear. None of the guards entered the house or sought to enter the house.

10 After a short time Mr. McKeown and the appellant came out and walked together...