Mitchell & McCann v Member in Charge Terenure Garda Station

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 03 May 2013
• Neutral Citation: [2013] IEHC 221
• Court: High Court
• Docket Number: [2013 Nos. 746 & 747 SS]
• Date: 03 May 2013

[2013] IEHC 221

THE HIGH COURT

[No. 746 SS/2013]

[No. 747SS/2013]

Mitchell & McCann v Member In Charge Terenure Garda Station

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

ANTHONY MITCHELL

APPLICANT

AND

MEMBER IN CHARGE, TERENURE GARDA STATION

RESPONDENT

JOHN McCANN

AND

MEMBER IN CHARGE, RATHMINES GARDA STATION

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S10

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S30(4)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S18(1)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S18(3)

CONSTITUTION ART 40.4.2

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S18

INTERPRETATION ACT 2005 S13

INTERPRETATION ACT 1937 S6

TAYLOR, STATE v CIRCUIT COURT JUDGE OF WICKLOW & ORS 1951 IR 311

DPP v COLLINS 1981 ILRM 447

DPP, PEOPLE v CLEARY 2005 2 IR 189 2005/19/3896 2005 IECCA 51

DOCUMENTARY EVIDENCE ACT 1925 S2

DOCUMENTARY EVIDENCE ACT 1925 S3

DOCUMENTARY EVIDENCE ACT 1925 S4

DOCUMENTARY EVIDENCE ACT 1925 S4(1)

DOCUMENTARY EVIDENCE ACT 1925 S4(2)

MIN FOR DEFENCE v BUCKLEY 1978 IR 314

CURRAGH OF KILDARE ACT 1961 S6

CURRAGH OF KILDARE ACT 1961 S1

Criminal law – Arrest and detention - Extension of period of detention – Unlawful detention – Right to personal liberty - Application for an inquiry under Article 40.4.2 of the Constitution - Judicial notice - Formal proof - Offences against the State Act 1939 - Offences Against the State (Amendment) Act 1998 - Interpretation Act 2005 - Documentary Evidence Act 1925

Facts: The applicants had been arrested in connection with scheduled offences which allowed for a period of detention of 48 hours for each pursuant to s. 30 of the Offences against the State Act 1939 ('the 1939 Act'). Section 10 of the Offences Against the State (Amendment) Act 1998 ('the 1998 Act') had extended s. 30 of the 1939 Act so that senior Garda officers could apply to the District Court for a warrant authorising the detention of a person for a further period of 24 hours if there was 'reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned'. When this amendment was passed, concerns existed as to the necessity of this new power therefore it was decided that it would be monitored by the Oireachtas who would be obliged to pass resolutions periodically in order to keep it in operation.

Such an application was made in respect of the two applicants, all of which challenged the application on the basis that a vital proof was missing, namely that formal proof had not been presented to show the power was still in operation by presenting an appropriate resolution of the Oireachtas. In both cases, the judges had taken judicial notice of the making of the relevant resolution by consulting the Oireachtas website in the first case and by disregarding the need for formal proof due to the judge"s prior knowledge of an existing resolution in the second case. The applicants brought applications for an inquiry under Article 40.4.2 to challenge the legality of their extended detention on the same basis that had been advanced before the District Court. The respondents argued that s. 13 of the Interpretation Act 2005 ('the 2005 Act') which states that 'an Act is a public document and shall be judicially noticed' meant that existence of the resolutions should be judicially noticed and that therefore there was no need for any formal proof. The applicants argued that this section did not apply as the resolutions could not be considered as a statute and the Oireachtas was not a relevant body pursuant to the Documentary Evidence Act 1925 ('the 1925 Act').

Held by Hogan J that the applicants" submission that the passing of a resolution fell outside s. 13 of the 2005 Act was correct. It was also determined that the Oireachtas was not a relevant body for the purposes of the 1925 Act. However, this was of no benefit to the applicants as it held that when the judge consulted the website in the first case, he was consulting a public document which was prima facie evidence that the resolutions had been passed as if they had been formally proven. The same approach applied to the second case. The judges therefore took judicial notice of the existence of the resolutions which was determined to be sufficient proof.

Applications refused.

1 JUDGMENT of Mr. Justice Hogan delivered on the 3rd May, 2013

2 1. On 3 ^rd September, 1998, the Oireachtas enacted the Offences Against the State (Amendment) Act 1998 ('the 1998 Act'). This legislation extended the scope of application of the Offences Against the State Acts 1939 - 1985 in a number of significant respects.

3 2. One of these significant changes was effected by s. 10 of the 1998 Act. Section 30 of the Offences against the State Act 1939 ('the 1939 Act') had previously provided for a maximum of 48 hours detention for persons arrested by members of An Garda Siochána on suspicion that they had committed a scheduled offence. Section 10 of the 1998 Act extended s. 30 of the 1939 Act by adding a new sub-section 4 to s. 30. This new sub-section allowed senior Garda officers to apply to the District Court for a warrant authorising the detention of a person so detained for 'a further period not exceeding twenty four hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned'.

4 3. Some concerns had, however, been expressed regarding this extension of police powers and it was accordingly enacted that the continuing necessity for these powers should be subject to constant monitoring by both Houses of the Oireachtas. To this end, s. 18(1) of the 1998 Act provides:-

5 2 '(1) Each of the following sections, namely sections 2 to 12 and 14 to 17 shall subject to subsection (2) cease to be in operation from 30th June, 2000, unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation.

6 (2) A section referred to in subsection (1) may be continued in operation from time to time by a resolution passed by each House of the Oireachtas before its expiry for such period as may be specified in the resolutions."

7 4. Section 18(3) provides:-

8 2 "(3) Before a resolution under this section in relation to a section specified in subsection (1) is passed by either House of the Oireachtas, the Minister for Justice, Equality and Law Reform shall prepare a report, and shall cause a copy of it to be laid before that House, of the operation of the section during the period beginning on the passing of this Act or, as may be appropriate, the date of the latest previous report under this subsection in relation to that section and ending not later than 21 days before the date of the moving of the resolution in that House, of the operation of the section since the making of any previous resolution."

9 The object of s. 18(3) is clearly to ensure that both Houses are in a position to make a considered judgment as to the necessity of the continued operation of the substantive provisions of the 1998 Act prior to making any decision as to whether to extend these powers or not.

10 5. That is the somewhat unusual background to the present applications under Article 40.4.2. in respect of the legality of the detention of these applicants. At the heart of their applications was the contention that the continued existence of the extended detention powers provided in s. 30(4) of the 1939 Act (and by virtue of which they were then detained) was contingent on formal proof being tendered to the District Judge who was considering the extension applications that the appropriate resolutions had been passed by both Houses of the Oireachtas. In essence, therefore, the question which now arises is as to the extent to which the District Court is entitled and, if so, in what circumstances, to take judicial notice of any resolution passed by both Houses of the Oireachtas for the purposes of s. 18 of the 1998 Act without the necessity for formal proof.

11 6. Following a hearing of the Article 40.4.2 applications in the evening of Tuesday, April 30th, I concluded that the applicants were in lawful custody. This judgment serves to give the detailed reasons for that conclusion.

12 7. The issue arises in the following way. The first applicant, Mr. Mitchell, was originally arrested under s. 30 of the 1939 Act in respect of certain firearms offences (which are scheduled offences) and the original 48 hour detention period was due to expire some time after 9pm on Monday, 29th April, 2013. His solicitor was then notified shortly before 8.00pm on the evening of 29th April that the Gardaí intended to apply to the District Court to have the applicant's period of detention extended.

13 8. The hearing commenced at around 8.00pm in the Criminal Courts of Justice and evidence was duly given on behalf of both the Gardaí and the applicant. At the conclusion of the Garda application, counsel for the applicant, Mr. Monahan, made a submission to the District Court to the effect that the application was defective in that a vital proof was missing, namely, evidence of the making of the appropriate resolutions under s. 18 of the 1998 Act.

14 9. Having heard submissions from both sides, District Judge Toale rose to consider the position. He then...