Maguire v DPP

JurisdictionIreland
JudgeMr. Justice Hardiman,Mr.Justice Hardiman
Judgment Date30 July 2004
Neutral Citation[2004] IESC 53
Date30 July 2004
Docket Number[S.C. No. 324 of 2004]
CourtSupreme Court
MAGUIRE v. DPP

BETWEEN:

COLM MAGUIRE
Applicant/Appellant

And

THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

[2004] IESC 53

Hardiman J.

Geoghegan J.

McCracken J.

324/04

THE SUPREME COURT

Synopsis:

- [2004] 3 IR 241 - [2005] 1 ILRM 53

Facts: This was the appellant's appeal from the order of the High Court whereby he was refused bail. The issues were, inter alia, whether the list of factors specified in s. 2 of the Bail Act 1997 were exhaustive of the factors a court was entitled to consider and whether for the purposes of a bail application the issue of delay was restricted to delay on the part of the prosecution authorities.

Held by the Supreme Court (Hardiman, Geoghegan and McCracken J.) in allowing the appeal and setting aside the order of the High Court and remitting the application to the High Court for further consideration that the High Court, in reaching its conclusion, had adopted an erroneous construction of ss. 2 and 3 of the Bail Act 1997.

Reporter: R.W.

Citations:

BAIL ACT 1997 S3

OFFENCES AGAINST THE STATE ACT 1939 S21

BAIL ACT 1997 S2

DPP V DOHERTY UNREP SUPREME 30.7.2001 2001/7/1782

BAIL ACT 1997 S2(2)

BAIL ACT 1997 S2(1)

DPP V O'CALLAGHAN 1966 1 IR 501

BAIL ACT 1997 S3(2)

BLACKSTONE COMMENTARIES ON THE LAWS OF ENGLAND 6ED 1775 295

STATUTE OF WESTMINSTER 3 EDW I C15

BILL OF RIGHTS 1688

STEPHEN'S HISTORY OF THE CRIMINAL LAW VOL 1 1883

AG V O'CALLAGHAN 1966 IR 501

CONSTITUTION 16TH AMDT 1966

CONSTITUTION ART 40.4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5(1)(C)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EAST DONEGAL CO-OP V AG 1970 IR 317

WALSH CRIMINAL PROCEDURE 2002

METROPOLITAN WATER BOARD V ASSESSMENT COMMITTEE OF THE METROPOLITAN BOROUGH OF ST MARYLEBONE 1923 1 KB 86

CONSTITUTION ART 40

DPP V ARTHURS 2000 2 ILRM 363

WHITE V DPP UNREP PEART 20.5.2003 2003/49/12064

BENNION STATUTORY INTERPRETATION 4ED 2002 285

CONSTITUTION ART 30.3

1

Mr. Justice Hardimandelivered the 30th day of July, 2004.

2

This is the appellant's appeal from the order of the High Court (Finnegan P.) of the 22 nd April, 2004 whereby he was refused bail. It appears that his application by notice of motion and affidavit was filed on the 18 th February, 2004, and was heard on the25 th and 26 th March, 2004 . Judgment was reserved at that time and delivered by the learned President on the2 nd April, 2004 . This judgment included very significant findings of the learned President in relation to the law applicable to applications such as the appellant's. Having delivered it the President decided to hear evidence with regard to the issue of delay within the meaning of s.3 of the Bail Act, 1997. Having done this he refused the application.

Factual background.
3

On the 10 th October, 2003, the applicant was charged before the Special Criminal Court with the offence of membership of an unlawful organisation contrary to s.21 of the Offences against the State Act as amended. He applied for bail to the Special Criminal Court and this application was opposed on the grounds that the applicant represented a flight risk and on the ground, mentioned is s.2 of the Bail Act, 1997, that the refusal of bail was reasonably considered necessary to prevent the commission by him of a serious offence. He was thereupon remanded in custody.

4

The applicant then applied to the High Court (Gilligan J.) on the10 th November, 2003, and was unsuccessful. He continued to be held in custody awaiting the service of a Book of Evidence upon him. It appears that the statutory time for the service of such Book –42 days – was extended from time to time. When no Book had been served by the 13 th January, 2004, the applicant reapplied to the Special Criminal Court on that date but was refused on the basis that the Special Criminal Court considered that the application should be made in the High Court. The applicant applied to the High Court (Peart J.) on the 23 rd February, 2004 . The respondent indicated his intention to oppose the application on the same grounds as it had originally been opposed before the Special Criminal Court, but first took the preliminary point that the issue was resjudicata. It appears that this issue was opened fully to Peart J. The learned judge took the view that the matter should be adjourned to the 15 th March, 2004 i.e. a date more than four months after the first refusal. On that day, the application came before Kearns J., who considered that, the matter having been opened before Peart J., the hearing should continue before him. But Peart J. was not then available and the learned President indicated his willingness to take the matterup.

New charges.
5

On the 9 th March, 2004, the applicant was charged with two further offences which were firearms offences, one of which carried a maximum penalty of ten years imprisonment, as opposed to seven years on the membership charge. On the same date the applicant applied to the Special Criminal Court for bail on those charges and on this occasion the application was opposed on the s.2 ground only. The applicant was, however, admitted to bail on these two charges. He is now in custody solely on the original charge alleging an offence contrary to s.21.

Service of the Book and subsequent developments.
6

It appears that the Book of Evidence in relation to this charge was served on the 5 th March, 2004 . Subsequently, a trial date was fixed in respect of that charge for June, 2005. Thereafter, the applicant's notice of motion for admission to bail, which led to the making of the order the subject of the present appeal, was made returnable before the President.

The High Court decision.
7

On the hearing of the applicant's application the learned President considered Sections 2 and 3 of the Bail Act, 1997. He then considered the decision of this Court in DPP v. Stephen Doherty (Supreme Court, Unreported, 30 thJuly, 2001) to the effect that the fixing of a relativelyremote trial date was not a change of circumstance such as to allow an applicant to bring a further bail application. In Doherty, however, the ground of refusal of bail had been the apprehended interference with witnesses, as opposed to s.2grounds.

Sections 2 and 3 of the Bail Act, 1997 and the High Court findings.
8

Section 2 provides as follows:

Refusal of bail.

2.–(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.

(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive evidence or submissions concerning-

a (a) the nature and degree of seriousness of the offence with which the accused person is charged and the sentence likely to be imposed on conviction,

b (b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction,

c (c) the nature and strength of the evidence in support of the charge,

d (d) any conviction of the accused person for an offence committed while he or she was on bail,

e (e) any previous convictions of the accused person including any conviction the subject of an appeal (which has neither been determined nor withdrawn) to a court,

f (f) any other offence in respect of which the accused person is charged and is awaiting trial,

and, where it has taken account of one or more of the foregoing, it may also take into account the fact that the accused person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act, 1977.

(3) In determining whether the refusal of an

application for bail is reasonably considered necessary to prevent the commission of a serious offence by a person, it shall not be necessary for a court to be satisfied that the commission of a specific offence by that person is apprehended.

9

Where bail has been refused pursuant to s.2 of the Bail Act, s.3 relates to circumstances in which the application may be renewed. It provides asfollows:

Renewal of bail application.

3.–(1) Where an application by a person forbail—

a (a) has been refused by a court under section 2,and

b (b) the trial of the person for the offence concerned has not commenced within 4 months from the date of such refusal,

then, the person may renew his or her application for bail to that court on the ground of delay by the prosecutor in proceeding with his or her trial, and the court shall, if satisfied that the interests of justice so require, release the person on bail.

(2) In determining whether to grant or refuse an application under subsection (1), a court may receive evidence or submissions concerning the delay in proceeding with the trial of the person concerned.

(3) Nothing in this section shall affect the operation of section 24 of the Act of 1967.

10

The learned President also held that s.2(2) of the Act "enumerates matters that the Court shall take into account when exercising its jurisdiction under subsection (1), and a further matter which the Courtmay take into account – the fact that the accused person was addicted to a controlled drug...". He went on to holdthat:

"As Section (2) is regulated in part by the word"shall" and in part by the word "may" this suggests that the legislature intended the factors enumerated in the subsection to be the only factors to which the Court should have regard where an objection to bail is raised in reliance on s.2".

The learned President went on to hold that "The eleventh ground enumerated by Murnaghan J. in O'Callaghan's case is not a factor to be taken into account in exercising jurisdiction under s.2 of the Act".

This ground is "the possibility of a speedy trial".

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