The State (Bowes) v Fitzpatrick

• Jurisdiction: Ireland
• Judgment Date: 01 November 1978
• Neutral Citation: 1990 WJSC-HC 2993
• Date: 01 November 1978
• Court: High Court

1990 WJSC-HC 2993

THE HIGH COURT

BOWES (State) v. FITZPATRICK

THE STATE (BOWES)

v

SUPERINTENDENT FITZPATRICK

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S30

Synopsis:

CRIMINAL LAW

Arrest

Validity - Garda - Suspicion - Scheduled offence - Commission - Murder weapon - Damage - Detention of suspect - Suspicion of malicious damage to property - Enquiry into legality of detention under Constitution - Release of suspect ordered - Offences Against the State Act, 1939, s. 30 - Constitution of Ireland, 1937, Article 40 - (1978/601&2 - Finlay P. - 1/11/78)

|The State (Bowes) v. Fitzpatrick|

1 JUDGEMENT OF THE PRESIDENT (Delivered 1st Nov,1978)

2 I am satisfied I must deal with this matter now. A detention which would continue to be lawful if this were a valid arrest would only continue for another 24 hours approximately and I cannot reserve judgment on it and I am satisfied that I have a duty when called upon to do so to inquire into the bona fides of an arrest under section 30 of the Offences Against The State Act, 1939, and the bona fides could be destroyed in several ways. The first of those is that there could be no suspicion that an offence scheduled under that Act had been committed. That is not the instant case and there were grounds for believing that in the course of an alleged murder and by the method by which the person who is believed to have committed that murder did commit it, inevitably damage was caused to the murder weapon and that technically constitutes the offence of malicious damage. The offence of malicious damage is one of the offences scheduled under the Offences Against The State Act, 1939and, by what appears to be somewhat of a legal anomaly, murder, a very grave offence, is not a scheduled offence under the Act. In those circumstances I am satisfied on the evidence given before me that the arrest of the accused under Section 30 of the Offences Against The State Act, 1939, which on the candid evidence of Detective Sergeant Maguire was ultimately or in reality for the purpose of enabling him to be interrogated in respect of the alleged murder was only made on suspicion of the commission of theoffence of malicious damage was a colourable device to bring what is in reality and in plain truth a murder investigation with in the ambit of Section 30 of the Offences Against the State Act, 1939.The Court of Criminal Appeal, of which I was a member in the case of the Director of Public...