Massoud v Judge Watkins

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 22 June 2004
• Neutral Citation: [2004] IEHC 434
• Court: High Court
• Date: 22 June 2004

[2004] IEHC 434

THE HIGH COURT

[No. 799 J.R./2003]

MASSOUD v JUDGE WATKINS & DPP

GEHAN MASSOUD

APPLICANT

AND

JUDGE ANN WATKINS AND THE DIRECTOR OF PUBLIC

PROSECUTIONS

RESPONDENTS

LARCENY ACT 1990

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 S10(2)

QUINLIVAN v GOVERNOR OF PORTLAOISE PRISON 1998 1 IR 456 1998 1 ILRM 294

CONSTITUTION ART 40.4.1

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION & IN THE MATTER OF THE EMERGENCY POWERS BILL 1976 1977 IR 159

O'FLYNN v DISTRICT JUSTICE CLIFFORD 1988 IR 740

DPP v EARLY 1998 3 IR 158

CRIMINAL JUSTICE ACT 1984 S4(2)

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S4(5)

CRIMINAL PROCEDURE ACT 1967

CORK CO COUNCIL v WHILLOCK 1993 1 IR 231

CRIMINAL LAW

Arrest

Re-arrest - Unlawful arrest - Applicant notcharged forthwith following re-arrest -Offence charged with not offence arrested for- Constitution - Right to liberty - CriminalJustice Act 1984 (No 22), ss 4 and 10 -Constitution of Ireland 1937, Article 40.4.1 -Relief granted [2005] 3 IR 154 (2003/799JR - Gilligan - 22/6/2004) [2004] IEHC 435

MASSOUD v JUDGE WATKINS & DPP

Facts: The applicant applied by way of judicial review for orders prohibiting the first respondent from dealing with the prosecution of the applicant on grounds that her re-arrest to effect her charging with an offence was not carried out in accordance with law and was therefore of no legal effect. The applicant contended that she was never a free agent in reality and therefore was effectively re-arrested in custody. The applicant also contended that while she was arrested for the second time for the offence of false pretences she was not charged for a further two hours and then she was charged with a different offence being that of conspiracy to defraud.

Held by Gilligan J. in granting the relief sought that once the applicant had been re-arrested in respect of the offence of false pretences it was incumbent on the member to charge the applicant with false pretences. The applicant was in custody having been re-arrested effectively in respect of the offence of false pretences for the purpose of being charged with that offence forthwith and once the decision was taken not to charge her with that offence and to charge her only with the offence of conspiracy to defraud, her original arrest became unlawful because its very purpose in accordance with the provisions of the Criminal Justice Act 1984 was not going to be fulfilled and she was in unlawful custody and was being held in breach of her constitutional right to liberty pursuant to Article 40.4.1 of the Constitution.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 22nd day of June, 2004

2 By order of this Honourable Court [ Ó Caoimh J.] as made herein 7 ^th day of November, 2003, the applicant was given leave to apply for orders of prohibition by way of judicial review prohibiting the first named respondent from dealing or proceeding to deal with the prosecution of the applicant on a charge of conspiracy to defraud pursuant to charge sheet 222650.

3 The grounds upon which the applicant was granted leave are as follows:

4 1. The District Court has no jurisdiction to deal with the matter and no jurisdiction is disclosed in the charge sheet or otherwise.

5 2. The charge sheet on foot of which the charge the subject matter of the proceedings was brought and the contents of which was tendered in evidence to the District Court does not disclose any jurisdiction in that the charge sheet fails to disclose the district in which the said offence was alleged to have been committed.

6 3. The charge sheet on foot of which the charge the subject matter of these proceedings was brought and evidence of which contents was tendered in evidence in court on 5 ^th day of November 2003 fail and failed to disclose any jurisdiction in the Dublin Metropolitan District in that the offence was not alleged to have occurred within the said district nor was any evidence tendered that the accused resided within the said district nor was any evidence tendered that the accused was arrested within the said district.

7 4. Evidence was tendered to the court by the second named respondent of the circumstances of the arrest of the applicant. This was that the applicant was arrested at her residence at Woodview Brownstown Ratoath in the County of Meath in the District Court District No. 10. The charge sheet fails to indicate in which district court district the offence is alleged to have occurred. The evidence tendered and the charge sheet fail to provide a basis on which the District Court could assume jurisdiction.

8 The applicant has sought leave to amend the grounds upon which relief is sought by the inclusion of an additional ground at 4A "that any subsequent or purported arrest as contended by Detective Sergeant Declan Daly or otherwise was not carried out in accordance with law and was therefore of no legal effect."

9 I am satisfied in the particular circumstances of this case that the amendment as requested to the grounds upon which relief is sought does not go outside the scope of the matters upon which leave was granted by Ó Caoimh J., and that the factual matters which are the subject matter of the amendments are comprehensively included in the factual matters which form the basis of the other grounds upon which relief is sought herein. I am satisfied that no prejudice is occasioned to the respondents by the granting of leave to amend the ground upon which relief is sought, and in effect the applicant does not seek judicial review upon grounds 1 to 4 inclusive, and in effect her case is dependent on the additional ground as set out at paragraph 4A as referred to herein and in these circumstances I grant the applicant leave to amend the grounds upon which relief is sought in the terms of paragraph 4A. Thus the only issue for determination in these proceedings is an order of prohibition prohibiting the first named respondent from dealing or proceeding to deal with the matter entitled Director of Public Prosecutions at the Suit of Detective Sergeant Daly complainant/prosecutor and Gehan Massoud accused/defendant pursuant to charge 222650 on the ground that any subsequent or purported arrest as contended by Detective Sergeant Declan Daly or otherwise was not carried out in accordance with law and was therefore of no legal effect.

10 The background circumstances to this application are that the applicant and her husband were both arrested at their home at Woodview, Brownstown, Ratoath, County Meath, on the morning of 4 ^th November, 2003, and it is quite clear from the Garda Síochána custody record relating to the applicant that she was arrested for false pretences pursuant to the Larceny Act and conveyed to Swords Garda Station where both she and her husband were detained pursuant to s. 4 of the Criminal Justice Act, 1984. Their period of detention was extended by Detective Superintendent Eugene Gallagher at 2.40 p.m.

11 The nature of the investigation surrounding the applicant and her husband's arrest is that it is alleged that a fraudulent claim was made by the applicant and her husband against Scottish Provident Ireland Limited (now known as the Abbey National Group Limited). It is alleged that a surgical operation had been carried out on the applicant at the Nobel Clinic, 79 Eccles Street, Dublin 1, and that as a result of that operation a sum of €685,658.56 was obtained on foot of a claim which was paid by Scottish Provident Ireland Limited into an account held in the name of the applicant and her husband at the Permanent TSB, Carysfort Avenue, Blackrock, Co. Dublin. During their period of arrest both the applicant and her husband were interviewed extensively by members of the Garda Bureau of Fraud Investigation at Swords Garda Station and at approximately 9 p.m. on 4 ^th November, 2003, Detective Sergeant Daly, having reviewed the evidence against both applicants, spoke by telephone to Detective Superintendent Eugene Gallagher and outlined the evidence available and his concern that the applicant and her husband would leave the jurisdiction if released without charge. He recommended to Detective Superintendent Gallagher that charges of obtaining by false pretences be preferred, and following this conversation and in the light of the evidence available he made the decision to charge both the applicant and her husband with the offence of obtaining by false pretences. At 9.13 p.m. the applicant, who was in the interview room, was notified by Sergeant Patrick Byrne, who was the Sergeant in charge that she was being released from the provisions of s. 4 of the Criminal Justice Act, 1984. The applicant was brought by Detective Sergeant Daly from the interview room to a location in the vicinity of the main entrance door to Swords Garda Station. He had already advised both the applicant and her husband that following their release they were going to be re-arrested for the purpose of charge and he accepts that he had made a decision to charge both the applicant and her husband with false pretences and that it was his intention to arrest both the applicant and her husband for the purpose of charging them immediately following their release from their detention under s. 4 of the Criminal Justice Act 1984. He says that the re-arrest of the applicant took place to effect her charging with the offence of false pretences as per the provisions of s. 10 of the Criminal Justice Act 1984. Detective Sergeant Daly says that around 9.13 p.m. the applicant was brought outside the station where she was immediately arrested for the offence of obtaining by false pretences and it was explained to her that the arrest related to obtaining by false pretences of cash...