McMahon v Judges of Special Criminal Court and DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mrs Justice McGuinness
• Judgment Date: 30 July 1998
• Neutral Citation: [1998] IEHC 128
• Date: 30 July 1998

[1998] IEHC 128

THE HIGH COURT

No. 288 J.R./1997

McMAHON v. JUDGES OF THE SPECIAL CRIMINAL COURT & DPP

JUDICIAL REVIEW

BETWEEN

HUGH SMITH McMAHON

APPLICANT

AND

THE JUDGES OF THE SPECIAL CRIMINAL COURT AND THE DIRECTOROF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

POST OFFICE (AMDT) ACT 1951 S13(1)

POSTAL & TELECOMMUNICATION SERVICES ACT 1983 SCHED 4 S8

OFFENCES AGAINST THE STATE ACT 1939 S47(2)

SPECIAL CRIMINAL COURT RULES 1975 SI 234/1975 RULE 17

OFFENCES AGAINST THE STATE ACT 1939 S30

MCELHINNEY V SPECIAL CRIMINAL COURT 1990 1 IR 405

DPP V KENNY 1990 2 IR 110

OFFENCES AGAINST THE STATE ACT 1939 S43

OFFENCES AGAINST THE STATE ACT 1939 S47

OFFENCES AGAINST THE STATE ACT 1939 S47(3)

OFFENCES AGAINST THE STATE ACT 1939 S47(1)

CRIMINAL JUSTICE ACT 1984 S4

MISUSE OF DRUGS ACT 1977 S26

MISUSE OF DRUGS ACT 1984 S13

Abstract:

Judicial Review — Prohibition — Certiorari — Whether prosecution fundamentally flawed — Jurisdiction — Constitutional right to fair trial — Coded telephone call to police in Scotland — Explosive device — Scottish National Liberation Army — Call recorded — Arrest — Whether first respondent misled — Whether applicant lawfully brought before first respondent — Applicant interviewed by garda outside court - Alleged admission — Judges Rules — Post Office (Amendment) Act, 1981, section 13(1) — Postal and Telecommunications Services Act, 1983, Fourth Schedule, section 8 — Special Criminal Court Rules (S.I. No.234 of 1975), rule 17 — Offences Against the State Act, 1939, sections 30, 43, 47, Criminal Justice Act, 1984, section 4 — Misuse of Drugs Act, 1977, section 26 — Misuse of Drugs Act, 1984, section 13 — Constitution of Ireland, 1937, article 38.

The suggestion that the applicant must be under arrest and in detention in a garda station before being questioned or interviewed in regard to an offence was ill-founded. If the applicant wished to challenge the admissibility of the evidence of his alleged admission to the gardai, the time for such was during his trial. A garda had not fully or accurately described the location of the applicant's alleged admission. This was due to inadvertence and not to any deliberate or conscious effort to interfere with the applicant's right to a fair trial. The High Court so held in saying it would in the circumstances be improper for the court to interfere by way of judicial review with the operation of the jurisdiction of the Special Criminal Court and it would refuse the reliefs sought.

1 Mrs Justice McGuinnessdelivered the 30th day of July 1998.

2 In these Judicial Review proceedings the Applicant seeks an Order of Prohibition preventing the Judges of the Special Criminal Court from further dealing with or attempting to put on trial the Applicant in a prosecution entitled "The People at the suit of the Director of Public Prosecutions -v- Hugh Smith McMahon" together with an Order of Prohibition prohibiting the Director of Public Prosecutions from further proceeding with the said prosecution. He also seeks Orders of Certiorari quashing the arrest warrant issued by the Judges of the Special Criminal Court on the 11th February, 1997 in respect of the Applicant, quashing the direction of the Director of Public Prosecutions that the Applicant be brought before the Special Criminal Court and also quashing all Orders of the Judges of the Special Criminal Court remanding the Applicant in custody and on bail. Leave to issue the Judicial Review proceedings was granted to the Applicant by this Court (Flood J.) on the 31st-July. 1997; the Applicant's originating Notice of Motion was returnable on the 13th October,1997. A Statement of Opposition was filed by the second named Respondent (the Director of Public Prosecutions) on the 15th December, 1997 and the matter came on for hearing before this Court on the 10th June.1998.

3 The grounds on which the Applicant seeks Judicial Review, as set out in his originating statement, arise from the ex parte application for a warrant for his arrest made to the Special Criminal Court on the 11th February, 1997. The Applicant claims that this warrant was issued on the basis of incorrect evidence given to the Court by Detective Inspector (now Detective Superintendent) Peter Maguire and that as a result the warrant is bad, the prosecution of the Applicant is fundamentally flawed, the first named Respondent has no jurisdiction to deal with the proceedings, and the proceedings are in breach of the Applicant's right to a fair trial under the Constitution. All these claims are strenuously opposed by the Director of Public Prosecutions in his Statement ofOpposition.

4 The factual background to the Applicant's arrest and charge is to some extent set out in his own Affidavits. Further details are included in the Affidavits of Detective Inspector Peter Maguire and other members of the Garda Siochana and a fuller picture of some aspects emerges from the Book of Evidence which was served on the Applicant on the 8th March, 1997 and which he exhibits with his grounding Affidavit. The basic facts are largely agreed, or at any rate unchallenged, by the parties.

5 At about 7.55 p.m. on the 22nd March, 1995 a telephone call from an anonymous male using the code name SPEAR was received at the Northern Constabulary Headquarters. Perth Road. Inverness, Scotland, warning that an explosive device had been placed at Kessock Bridge on the A9 main road, Inverness, and was timed to go off at 9 p.m. that night. As was the normal practice of the Northern Constabulary, the telephone call was tape recorded. The code word SPEAR was known to be used by an organisation know n as the Scottish National Liberation Army. As a result the Kessock Bridge was closed for some twohours with major disruption of traffic. A search of the bridge revealed no explosive device. The Northern Constabulary preserved the tape recording of the telephone call and carried out their owninvestigations.

6 The Applicant in the present proceedings is a native of Scotland, normally resident in Glasgow. He came to Ireland in or about 24th January, 1995 and has resided here since in the general area of Gardiner Street in Dublin. He is unemployed. He appears to have some acquaintance or association with another Scot, Adam Stuart Busby, who resides close to the Applicant in Dublin. Mr. Busby apparently makes no secret of the fact that he is involved in the Scottish National Liberation Army.

7 During the early months of 1995 the Applicant and Mr. Busby were being kept under observation by the Gardai, who apparently were investigating matters connected with the Scottish National Liberation Army. On 22nd March, 1995 Detective Garda Brendan Moffat and Detective Garda Frank O'Sullivan observed the Applicant and Mr. Busby entering a public telephone kiosk at Summerhill Parade, Dublin, at 7.53 p.m. Mr. Busby dialled a number and the Applicant spoke into the telephone. The call ended at approximately 7.57 p.m. The two men remained in the telephone kiosk for several minutes and then left.

8 Presumably as a result of their own investigations, the Scottish police informed the Garda Siochana about the details of the bomb warning call which had taken place on the 22nd March, 1995, and on 19th May, 1995 Detective Inspector Peter Maguire went to Pitt Street Police Station, Glasgow, where he listened to a tape of the telephone call and requested a copy of it. The copy tape was delivered to Detective Inspector Maguire in Dublin on the 6th June, 1995.

9 Meanwhile on 3rd June, 1995 the Applicant was arrested under Section 30 of the Offences Against the State Act, 1939and held for questioning in Fitzgibbon Street Garda Station. He was interviewed by a number of Gardai and was questioned about his ownandMr. Busby's connections with the Scottish National Liberation Army. He was also questioned about the telephone call made to Inverness on the 22nd March, 1995. He admitted that he was acquainted with Mr. Busby, but at all times denied that he himself had any connection with the SNLA or with the telephone call made to the police at Inverness. He was released without charge.

10 When the relevant members of the Garda Siochana listened-to the tape which Detective Inspector Maguire had obtained from the Scottish Police, they apparently formed the view that the voice on the tape was that of the Applicant. However, no further action was taken until 20th May, 1996 when Detective Inspector Maguire gave the tape to Detective Sergeant Nicholas McGrath and directed him to meet the Applicant on an informal occasion and play the tape to him. On 12th June, 1996 the Applicant was in the public gallery of the Special Criminal Court in Green Street. Detective Sergeant McGrath asked him to come outside for a few minutes, which he did. The Applicant was cautioned in the normal way. Detective Sergeant McGrath, who was accompanied by a number of other Gardai, played the tape recording to the Applicant on the steps of Green Street Courthouse. The Gardai in their Affidavits aver that he admitted that the voice on the tape recording was his, invited them to charge him, and then went back into the Courthouse. The Garda account of this incident is not substantially challenged by the Applicant in his Affidavits, although he does not admit to the words alleged to have been used by him on that occasion.

11 On the 11th February, 1997, some eight months later, an ex parte application was made to the Special Criminal Court by Mr. Patrick Geraghty of the Chief State Solicitor's Office on behalf of the Director of Public Prosecutions for a warrant to arrest the Applicant on a charge that on 22nd March, 1995 within the State he did send by means of a telecommunication system operated by Bord Telecom Eireann a message which was of a menacing character, contrary to Section 13(1) of the Post Office (Amendment) Act, 1951, asinserted by Section 8 of the Fourth Schedule to the Postal and...