Maloney v Ireland and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 25 June 2009
• Neutral Citation: [2009] IEHC 291
• Court: High Court
• Date: 25 June 2009

[2009] IEHC 291

THE HIGH COURT

[No. 10544 P/2008]

Maloney v Ireland & Ors

BETWEEN

DAVID MALONEY

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTION AND THE MEMBER IN CHARGE OF TALLAGHT GARDA STATION, SERGEANT JOHN CRIBBIN

DEFENDANTS

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S10

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S13(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S13(3)

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.4.1

CAHILL v SUTTON 1980 IR 269

REPORT OF THE COMMITTEE TO REVIEW THE OFFENCES AGAINST THE STATE ACTS 1939-1980 & RELATED MATTERS PAR 7.50

REPORT OF THE COMMITTEE TO REVIEW THE OFFENCES AGAINST THE STATE ACTS 1939-1980 & RELATED MATTERS PAR 7.45

M (D) (A MINOR) v IRELAND & ORS UNREP CLARKE 21.4.2009 2009 IEHC 206

C C v IRELAND 2006 4 IR 1

EAST DONEGAL CO-OPERATIVE v AG 1970 IR 317

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (IRE) LTD v COOGAN 1989 IR 734

STATUTE OF LIMITATIONS 1957 S11(2)(B)

O'MAHONY v MELIA 1989 IR 335

CRIMINAL JUSTICE ACT 1951 S15

CRIMINAL JUSTICE ACT 1984 S26

WOODS, APPL OF 1970 IR 154

OSMANOVIC v DPP 2006 3 IR 504

INJUNCTION

Criminal trial

Restraint - Constitutional challenge - Principles to be applied - Jurisdiction - Locus standi - Whether plaintiff had locus standi to challenge constitutionality of statute - Jus tertii - Detention for up to 72 hours for possession of specified categories of information - DM (a minor) v Ireland [2009] IEHC 206 (Unrep, Clarke J, 21/4/2009); Cahill v Sutton [1980] IR 269 applied; O'Mahoney v Melia [1989] IR 335 distinguished; East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317, CC v Ireland [2006] 4 IR 1, SPUC (Ireland) Ltd v Coogan [1989] IR 734, Woods, Application of [1970] IR 154 and Osmanovic v DPP [2006] 3 IR 504 considered - Offences Against the State Act 1939 (No 13), s 30 - Reliefs refused (2008/10544P - Laffoy J - 25/6/2009) [2009] IEHC 291

Maloney v Ireland

Facts: The plaintiff sought an interlocutory injunction restraining the third named defendant from proceeding with the trial of the plaintiff pending the determination of the issues raised in the substantive proceedings. The primary relief claimed by the plaintiff in the substantive proceedings was a declaration that s. 30(1) of the Offences Against the State Act, 1939 was repugnant to the Constitution. The plaintiff had been arrested following a report of armed intruders at a residence in the Tallaght area and following his detention pursuant to s.30, he was later charged with burglary and various offences under the Firearms Acts. The plaintiff challenged his detention during the course of that detention by way of an inquiry pursuant to Article 40 of the Constitution and the High Court concluded that the detention was lawful. The plaintiff’s challenge to s. 30 (1) was founded on the proposition that the section permitted the arrest and 72 hour detention of a person who was merely suspected of possessing information in relation to particular types of offences without being suspected of having committed or being about to commit an offence, or of refusing to provide or concealing information regarding an offence, or of any wrongdoing, or of being in any way blameworthy or dangerous. The plaintiff submitted that the fact of his arrest and the prospect of being convicted of serious offences on foot of his detention under s. 30(1) afforded him locus standi to bring these proceedings. The plaintiff also contended that there was an overwhelming public interest in permitting the challenge to the constitutionality of s. 30(1).

Held by Laffoy J. in dismissing the plaintiff’s application: That the plaintiff’s challenge to the constitutionality of s. 30(1) could not be mounted on the basis of a constitutional jus tertii. The plaintiff’s challenge to the legislation in this case was based on a hypothetical scenario unconnected with the factual circumstances of his detention. The plaintiff was not a person who was arrested and detained as a person merely suspected of being in possession of information relating to the commission or intended commission of an offence. Consequently, the plaintiff failed to demonstrate that he had the locus standi to challenge the constitutionality of s. 30(1) on the basis he contended. Therefore, he did not establish that there was a fair case to be tried as to the validity of that provision having regard to the provisions of the Constitution.

Cahill v Sutton [1980] I.R. 269 and

D. (a minor) v Ireland and Ors

. [2009] IEHC 206 followed.

Reporter: L.O’S.

1 Miss Justice Laffoydelivered on the 25th day of June, 2009

The application

2 On this application the plaintiff seeks an interlocutory injunction restraining the third named defendant (the DPP) from proceeding with the trial of the plaintiff in the Dublin Circuit Criminal Court pending the determination of the issues raised in the substantive proceedings.

3 The primary relief claimed by the plaintiff in the substantive proceedings is a declaration that s. 30(1) of the Offences against the State Act 1939 (the Act of 1939) is repugnant to the Constitution "insofar as that under it one can be detained for up to 72 hours merely for possession of specified categories of information". The plaintiff also seeks a declaration that "in that regard" the provision is incompatible with Article 5 of the European Convention on Human Rights. There is also a claim for a declaration that the plaintiff's detention in issue was unlawful by virtue of the reliance of the fourth named defendant on s. 30(1) and on the plaintiff's alleged possession ofinformation to ground his detention on 22 ^nd January, 2008. The plaintiff also seeks an injunction restraining the DPP from adducing any evidence arising from the detention under s. 30(1) and from relying on inferences from the plaintiff's alleged silence during his period in detention in any trial.

The impugned provision

4 Section 30(1) of the Act of 1939 provides as follows:

"A member of the Gárda Síochána … may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid."

5 Section 30 was amended by s. 10 of the Offences Against the State (Amendment) Act 1998 by the substitution for sub-s. (4) of s. 30 by sub. ss. (4), (4A), (4B) and (4C). The amendment provides for the extension of the period of detention from 48 hours as originally provided in s. 30 to 72 hours by making provision for an application to a Judge of the District Court for a warrant authorising detention for a further period not exceeding 24 hours after the expiration of the initial periods of 24 hours and 24 hours provided for in sub.s. (3) of s. 30.

6 Before considering in greater detail the manner in which it is alleged thats.30(1) is invalid having regard to the provisions of the Constitution in the plaintiff's statement of claim, I propose outlining the facts which give rise to the substantive proceedings and to this application in chronological order.

The facts and chronology

7 The arrest of the plaintiff on 22 ^nd January, 2008 is described in the statement of the arresting Garda, Garda Mark Shortt, in the Book of Evidence to which I will refer later, which is exhibited on this application. Garda Shortt states that while working on a mobile patrol in the Tallaght area on 21 ^st January, 2008 he received a call to respond to an "armed intruders on" call at a residence in that area. While on route to the call, he observed two males dressed in black clothing running along a residential road. The patrol car pursued the men and later Garda Shortt pursued one of the men on foot. He eventually caught up with him. He was the plaintiff. Garda Shortt arrested the plaintiff for a drug search under s. 23 of the Misuse of Drugs Act 1977 at 11.15pm. A search conducted by Garda Shortt's colleague on the route along which the two men had been chased resulted in the recovery of a shotgun in the front garden of a house. The plaintiff was taken to Tallaght Garda station where a thorough drug search proved to be negative. He was released from the s.23 search at 00.15am on 22 ^nd January, 2008. At that stage Garda Shortt was aware that two men had entered the house to which the "armed intruders on" call related "in aggravated circumstances, one armed with a handgun and the other armed with a shotgun" and that "two shots were discharged at the scene and the men fled on foot". At 00.18am on 22 ^nd January, 2008 Garda Shortt brought the plaintiff to Belgard Walk where he arrested him under s. 30 of the Act of 1939 for possession of information in relation toa scheduled offence, namely, possession of a firearm at Tallaght. The plaintiff was detained and questioned.

8 Sometime during the afternoon of 22 ^nd January, 2008 an application was made on behalf of the plaintiff to the High Court (O'Neill J.) for an inquiry under Article 40 of the Constitution into the lawfulness of the plaintiff's detention and that a case be stated for the consideration of the Supreme Court on the question of the constitutionality of s. 30 of the Act of...