Keating v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: O'FLAHERTY J.,McCarthy, J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 1976
• Court: Supreme Court
• Docket Number: [S.C. No. 213 of 1989]
• Date: 01 January 1991

KEATING v. GOVERNER OF MOUNTJOY

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 4O OF THECONSTITUTION

BETWEEN/

DEREK KEATING

APPLICANT/APPELLANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

1990 WJSC-SC 1976

213/89

THE SUPREME COURT

Synopsis:

CONSTITUTION

Personal rights

Liberty - Accused - Attendance - Procurement - Lawful means - Relevance - District court - Remand in custody - Legality of detention - Valid order of remand - (213/89 - Supreme Court - 10/7/90) - [1991] 1 I.R. 61 - [1990] ILRM 850

|Keating v. Governor of Mountjoy Prison|

CRIMINAL LAW

Accused

Attendance - Procurement - Lawful means - Relevance - District Court - Remand in custody - Legality of detention - Valid order of remand - (213/89 - Supreme Court - 10/7/90) - [1991] 1 I.R. 61

|Keating v. Governor of Mountjoy Prison|

DISTRICT COURT

Jurisdiction

Criminal case - Accused - Attendance - Procurement - Lawful means - Relevance - Challenge by accused to existing detention by Garda whereby accused brought before court - Personal rights - Liberty - Court without jurisdiction to undertake enquiry under Article 40.4.2 of Constitution - Criminal Justice Act, 1984, s. 4 - Constitution of Ireland, 1937, Article 40 - (213/89 - Supreme Court - 10/7/90) - [1991] 1 I.R. 61 - [1990] ILRM 850

|Keating v. Governor of Mountjoy Prison|

Citations:

CRIMINAL JUSTICE ACT 1984 S4

CONSTITUTION ART 40

AG, STATE V FAWSITT 1955 IR 30

MCDONNELL, AG V HIGGINS 1964 IR 374

DPP, PEOPLE V LYNCH 1982 IR 64

DPP, PEOPLE V KENNY UNREP SUPREME 20.3.90

TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

KEATING V GOVERNOR OF MOUNTJOY PRISON 1989 IR 286

CRIMINAL PROCEDURE ACT 1967

OFFENCES AGAINST THE STATE ACT 1939 S30

FRANCIS, IN RE 97 ILTR 160

SINGER (NO 2), IN RE 98 ILTR 112

CONSTITUTION ART 40.4.2

CONSTITUTION SAORSTAT EIREANN ART 6

1 Judgment of McCarthy, J.delivered the 10th day of July, 1990. [FINLAY, C.J CONC.]

2 Section 4 of the Criminal Justice Act, 1984provides for the detention, subject to the provisions of the section, for a period not exceeding 6 hours from the time of arrest, of a person arrested without warrant "if the member of the Garda Siochana in charge of the station to which he is taken on arrest has at the time ofthatperson's arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence". Further provision for releasing and/or charging the person concerned is also made in the section.

3 The remand in custody was made on the 3rd May until the 4th, and on the 4th May until the llth. On the 9th May, an Order was made by Barrington, J. for an enquiry under Article 40; on the llth May bails were fixed at sums reduced by order of Barrington, J. on the 12th May. These bails were forthcoming and the Appellant was and remains released onbail.

4 At the hearing before District Justice Kirby, Mr. Staines applied forthe release of the Appellant on the grounds that he had not beendetained in accordance with the law, having established that the memberof the Garda Siochana in charge of the station to which the Appellantwas taken on arrest was not present in the District Courtto give evidence as to his belief as required by Section 4. TheAppellant was physically present in Court and had been charged with theseveral offences while detained at Cabra Garda Station. At first sight,therefore, the only function of the District Justice was to enter on theprocedure prescribed by the Criminal Procedure Act, 1967. An Order for remand in custody or on bail is part of that procedure.In the State (Attorney General)-v- Fawsitt (1), Davitt, P. andin Attorney General (McDonnell)-v- Higgins (2), this Courtappeared to hold that once a person is physically before the Court, itmatters not how he got there. That is certainly clear from theobservations of Davitt, P.; I doubt, however, if such is a trueconstruction of the words of Kingsmill Moore, J. in Higgins where theissue was not one of

arrest or detention but of the validity of procedural amendments. Theobservations of Davitt, P. in Fawsitt admit of no doubt as to hisconclusion - "even if he is brought there by an illegal process,the Court's jurisdiction is none the less effective". Again,however, the issue was not, as here, a question as to lawfulness ofdetention but, rather, that of lawfulness of trial - whether or not itwas necessary to prove at a trial on indictment that the accused hadbeen arrested, charged, cautioned, brought before the District Justiceor returned for trial (see page 54). Here we are faced with a differentproblem. It may well be that there was nothing untoward about thedetention pursuant to Section 4; the question is whether or not a personbefore the District Court is entitled to raise the issue there and thenfor determination by the District Justice as to whether or not hispresent detention by the Garda Siochana is valid according to law. As itwas succinctly put by Counsel forthe Appellant, is there an overriding duty on the Court to vindicate,there and then, the constitutional right of the person before thatCourt? The Appellant places significant reliance on the words of Walsh,J. in The People -v- Lynch (3) "it would be mostincongruous if they were to apply a general test of basic fairnessbecause the Constitution requires it, and not to rule on questions of the admissibility of evidence obtained as a result of breaches of theconstitutional rights of the accused. The judicial obligation is touphold all of the Constitution"

5 The answer made, on behalf of the authorities, as I understand it, isthat such an enquiry is premature since it touches, not on the issue ofcontinuing detention, now ordered by the District Court, but, rather, onthe issue of admissibility of evidence which may have been obtained

in breach of the constitutional rights of the person detained. Ignoranceof the breach of such rights would be no answer if such breach wereprocured, even unwittingly, by a deliberate act which was, in fact, inbreach. See The People -v- Kenny (4)

6 The alternative qualification on this submission is that it is not the role of the District Court to carry out such enquiry with a view to determining the validity of present detention as a preliminary to an Order for continuing detention - that is the role of the High Court as prescribed by Article 40. In the State (Trimbole) -v- The Governor of Mountjoy Prison (5) Finlay, C.J. said at 577

"If the challenge to the legality of the prosecutor's detentionhad been based on a want of jurisdiction

in the District Court, or if the successful challenge to the originalarrest had been one of form creating an illegality but not constitutingeither a conscious and deliberate violation of his constitutional rightsor the abuse of a process of the court, then in those instances,undoubtedly, on the authority of the decisions in Re Brian Francis andin Re Singer (No. 2) the orders of the District Court, having been madewithin jurisdiction, would justify the detention of the prosecutorirrespective of the method by which he had been brought before thatcourt. I have no doubt, however, that different considerations apply toa challenge arising from the discretion at common law to prevent abuseof the processes of the court and the duty under the Constitution tovindicate the constitutional rights of the prosecutor."

7 In my own judgment at 581 I said -

"If, then, the Executive itself abuses the process oflaw as in this case by the wrongful use of s. 30 of the Offences Against...