Maloney -v- Ireland & Ors, [2009] IEHC 291 (2009)

Docket Number:2008 10544 P
Party Name:Maloney, Ireland & Ors
Judge:Laffoy J.
 
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THE HIGH COURT2008 10544 P

BETWEEN

DAVID MALONEYPLAINTIFFAND

IRELAND AND THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTION AND THE MEMBER IN CHARGE OF TALLAGHT GARDA STATION, SERGEANT JOHN CRIBBINDEFENDANTSJudgment of Miss Justice Laffoy delivered on the 25th day of June, 2009

The application

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.

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 of information to ground his detention on 22nd 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

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."

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.

Before considering in greater detail the manner in which it is alleged that

s. 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

The arrest of the plaintiff on 22nd 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 21st 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 22nd 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 22nd 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 to a scheduled offence, namely, possession of a firearm at Tallaght. The plaintiff was detained and questioned.

Sometime during the afternoon of 22nd 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 1939 and that the plaintiff be admitted to bail pending the determination of the same. O'Neill J. directed the inquiry. At around 6.30pm that evening the plaintiff was produced in Court. Evidence was heard from

Garda Shortt and from Detective Inspector Pat Lordan, the Member in Charge, of the circumstances of the plaintiff's arrest. The Court heard legal argument. O'Neill J. concluded that the plaintiff's detention was lawful. He refused to state a case. An approved note of his ex tempore judgment has been put before this Court which records that, having outlined the evidence, which is consistent with what I have recorded, O'Neill J. stated as follows:

"8. The applicant was arrested under s. 30 because there was suspicion that he was in possession of information relevant to one of the relevant offences. However manifestly there is a likelihood at the very least that there was a suspicion that he was involved in the commission of such an offence. It is clear that there was a suspicion that he had information related to such offences. On the basis of the evidence I have heard the Gardaí must also have suspected him of being involved in the offences as well as merely being in possession of information in respect of same. Thus he is suspected of having information in respect of offences in which he was himself directly involved.

  1. To my mind it is almost absurd, having regard to those facts, to suggest that the applicant's constitutional rights are in any sense breached under s. 30 where he has been arrested for being suspected of being in possession of information relating to an offence in which he was clearly implicated. That conclusion is more than sufficient to dispose of this application.

  2. The submission made to me this afternoon that an innocent person who is in no way blameworthy and who is not withholding information is liable to be arrested under this provision, appeared on its face to be a compelling argument to justify the inquiry sought. However that fact scenario is not applicable in this...

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