Preece v DPP & Minister for Foreign Affairs
| Jurisdiction | Ireland |
| Judge | Mr. Justice Ó Caoimh |
| Judgment Date | 07 December 2000 |
| Neutral Citation | [2000] IEHC 91 |
| Date | 07 December 2000 |
| Docket Number | 277 JR of 2000 |
| Court | High Court |
[2000] IEHC 91
THE HIGH COURT
BETWEEN
AND
Citations:
MARITIME JURISDICTION ACT 1959 S11
CUSTOMS CONSOLIDATION ACT 1876 S202
MISUSE OF DRUGS ACT 1977 S25
MISUSE OF DRUGS ACT 1977 S15
CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2
CRIMINAL LAW ACT 1977 S4(3)
MISUSE OF DRUGS REGS 1988 SI 328/1988 REG 4(1)(c)
MISUSE OF DRUGS (AMDT) REGS 1993 SI 342/1993
MISUSE OF DRUGS ACT 1977 S5
MISUSE OF DRUGS ACT 1977 S15(A)
MISUSE OF DRUGS ACT 1977 S27
MISUSE OF DRUGS ACT 1984 S6
CRIMINAL JUSTICE ACT 1999 S4
MISUSE OF DRUGS ACT 1977 S21(2)
MISUSE OF DRUGS ACT 1984 S6
MISUSE OF DRUGS REGS 1988 SI 328/1988 REG 4(1)
CUSTOMS CONSOLIDATION ACT 1876 S186
MISUSE OF DRUGS ACT 1984 S7
GENEVA CONVENTION 1958 ART 19
LAW OF THE SEA CONVENTION ART 22
DPP, PEOPLE V VAN ONZEN & LOOPMANS 1996 2 ILRM 387
CRIMINAL JUSTICE ACT 1924 S12
TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550
MARITIME JURISDICTION ACT 1959 S11(1)
ALIENS ACT 1935
MISUSE OF DRUGS ACT 1977 S13
DPP, PEOPLE V KENNY 1990 2 IR 110
O'CALLAGHAN, STATE V O HUADHAIGH 1977 IR 42
Synopsis:
Criminal Law
Criminal Law; right to a fair trial; jurisdiction to prosecute aliens for alleged narcotics offences in the territorial seas; whether certificate of the Minister for Foreign Affairs necessary to institute procedings; whether adjournment of trial, subsequent entry of a nolle prosequi and rearrest of the applicant on foot of freshly issued certificate constituted violation of his constitutional right to a fair trial; whether Circuit Court judge should have directed the jury to acquit the applicant for want of certificate in initial procedings; whether application by respondent for adjournment bona fide; applicant seeking inter alia order of prohibition restraining respondent from taking any further steps in the proceedings; s. 11(1), Maritime Jurisdiction Act, 1959.
Held: Appeal dismissed.
Preece v. D.P.P. - High Court: O'Caoimh J. - 07/12/2000
The applicant had been arrested on board a ship in conjunction with the alleged smuggling of a quantity of cannabis resin. Proceedings were then instituted against the applicant. Some time later it transpired that a certificate under section 11 of the Maritime Jurisdiction Act, 1959 had not been issued. Such a certificate was necessary in order to ground proceedings against the applicant. The respondent entered a nolle prosequi against the applicant. The appropriate certificate was then obtained and fresh proceedings were then initiated against the applicant. The applicant sought an order of certiorari in respect of the certificate and sought an order of prohibition against any further proceedings. Ó Caoimh J held that the respondent had correctly sought the further detention of the accused while the correct position regarding the certificate necessary to ground proceedings was researched. The subsequent decision by the Minister in question to issue a certificate pursuant to section 11 of the Maritime Jurisdiction Act, 1959 was not invalid. Further proceedings against the applicant would not be prohibited. The application would be dismissed.
JUDGMENT delivered by Mr. Justice Ó Caoimh on the 7th day of December 2000 .
By Order of the 31st of May 2000 Mr. Justice Lavan gave leave to the Applicant to apply by way of an application for Judicial Review for
(i) An Order of Certiorari quashing the certificate of the second named Respondent given at Dublin under official seal of the Minister for Foreign Affairs (hereinafter referred to as the Minister) on the 16th day of May 2000 pursuant to Section 11 of the Maritime Jurisdiction Act 1959.
(ii) An Order in the nature of Prohibition preventing the first named Respondent (hereinafter referred to as the Director) from taking any further steps in the criminal proceedings the subject matter of these proceedings.
(iii) An Order in the nature of Prohibition preventing and restraining the first named Respondent from instituting any further criminal proceedings against the Applicant arising out of the subject matter of the charges preferred against the Applicant before Cork Circuit Criminal Court on the 15th day of May 2000.
The grounds upon which such relief is sought are as follows:-
(a) The first named Respondent, in deliberate and conscious violation of the Applicant's constitutional right to liberty, fairness, fair procedures and a fair trial in due course of law repeatedly sought the adjournment of the Applicant's trial before Cork Circuit Criminal Court on the 15th of May 2000 on the pretext of legally researching whether in fact the first named Respondent was in a position to proceed with the prosecution against the Applicant when there was a perceived fatal flaw in the prosecution in that there was absent a Certificate pursuant to Section 11 of the Maritime Jurisdiction Act, 1959when the proceedings were commenced and when the real purpose or effect of the application for adjournment was to have the Applicant detained in custody until the second named Respondent could issue a new Certificate pursuant to Section 11 of the Maritime Jurisdiction Act, 1959so as to enable the first named Respondent to enter a Nolle Prosequi and commence a new prosecution against the Applicant.
(b) As no Certificate pursuant to Section 11 of the Maritime Jurisdiction Act, 1959existed until the 16th May 2000, the Applicant was held in unlawful custody from 18th November, 1999 until 17th May, 2000 in conscious and deliberate violation of his constitutional right to liberty and contrary to natural and/or constitutional justice and basic fairness of procedures.
(c) That the second named Respondent when he purported to issue a Certificate on the 16th of May, 2000 pursuant to Section 11 of the Maritime Jurisdiction Act, 1959knew that the Applicant was being detained in deliberate and conscious violation of his constitutional rights and also knew that at the time the request was made of him, that the previously instituted proceedings were still pending before Cork Circuit Criminal Court arising from the same subject matter in respect of which the Certificate issued.
(d) The purported issue of the said Certificate by the second named Respondent was in excess of, or outside, his jurisdiction either upon the grounds that he failed to ascertain and have any or any proper regard to all or all relevant facts and matters in and about deciding to issue, or issuing, such certificate or, no Minister for Foreign Affairs, acting reasonably might have considered it expedient to do so, or, the same gave rise to or facilitated a breach of the Applicant's constitutional rights aforesaid.
(e) That to permit the first named Respondent to proceed with a new prosecution against the Applicant in all of the circumstances would be unjust and unfair and would cause the further unnecessary detention of the Applicant.
(f) That the entry of a Nolle Prosequi before Cork Circuit Court on l6th May 2000 inhibits further prosecution of the Applicant by the first named Respondent in particular for the purposes of allowing the said Respondent to remedy a fundamental defect in the original criminal proceedings.
The Statement grounding the Application for Judicial Review was verified by an Affidavit for and on behalf of the Applicant by Diarmuid O'Shea, Solicitor and filed 31st day of May 2000 . In his Affidavit Mr. O'Shea deposes as follows:-
(a) On 16th November, 1999 the Applicant was aboard a United Kingdom registered ship, a converted trawler, "Posidonia" in a position approximately 6 nautical miles south west of Fastnet Rock, off the coast of Ireland, six miles from the baseline within the meaning of the Maritime Jurisdiction Acts of 1959to 1988. The "Posidonia" was stopped and boarded by an armed boarding party consisting of eight naval personnel and two officers of Customs & Excise in purported pursuance of their powers pursuant to Section 35 of the Criminal Justice Act 1994. On that date one John O'Sullivan, a Customs & Excise Officer, purported to detain the "Posidonia" and its crew (including the Applicant) under Section 202 of the Customs Consolidation Act, 1876 and thereafter the "L.E. Ciara" escorted the "Posidonia" to Schull harbour where "Posidonia" was secured alongside the pier at about 2.30am on 17th November, 1999.
(b) At about 2.52am on 17th November 1999 one Detective Garda Bartholomew O'Leary of An Garda Siochana, Bantry, Co. Cork purported to arrest the Applicant under Section 25 of the Misuse of Drugs Act 1977– 1984for an offence under Section 15 of the same act for possession of a suspected controlled drug to wit Cannabis Resin in Irish territorial waters on 16th November 1999 for the purpose of sale or supply to persons unknown.
(c) The Applicant was brought to Bandon Garda Station where he was detained under Section 2 of the Criminal Justice (Drug Trafficking) Act 1996from about 4.10am on 17th November 1999 to about 9.30pm on 18th November 1999 when he was purportedly released from custody. At about 9.31pm on the said same date he was informed by the said Detective Garda B. O'Leary that he was arresting him under Section 4(3) of the Criminal Law Act 1977 for the purpose of charging him. At about 10.15pm on the same date Detective Garda B. O'Leary charged the Applicant with charges as set out in the Charge Sheet number 4 of the Schull Garda Station 1999 namely:
"For that you the said accused did on the 16th of November 1999 within the State had in your possession a controlled drug to wit cannabis resin for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under Section 5 of the Misuse of Drugs Act...
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