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Judgment
Title:
Director of Public Prosecutions -v- Alcock; Director of Public Prosecutions -v- Alcock
Neutral Citation:
[2007] IESC 70
Supreme Court Record Number:
146/07
High Court Record Number:
N/A
Date of Delivery:
12/19/2007
Court:
Supreme Court
Composition of Court:
Murray C.J., Hardiman J., Fennelly J.
Judgment by:
Murray C.J.
Status:
Approved

THE SUPREME COURT
Murray C.J.
Hardiman J.
Fennelly J.
145/07
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA MICHAEL DILLANE
[PROSECUTOR/RESPONDENT]
-V-
TERENCE ALCOCK
[DEFENDANT/APPELLANT]
AND
146/07
THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA MICHAEL DILLANE
[PROSECUTOR/RESPONDENT]
-V-
JACQUELINE ALCOCK
[DEFENDANT/APPELLANT]

JUDGMENT (ex-tempore) delivered on the 19th day of December 2007 by Murray C.J.

These two matters are two consultative Cases Stated by the District Court in which four questions of law are posed. The High Court answered the questions in a particular manner which was adverse to the submissions of the appellant who is the defendant in the substantive proceedings before the District Court. I do not think that it is necessary to review the judgment of the High Court or specifically the precise basis on which the answers were given. Suffice it to say that the questions as posed are net questions of law although I think it has to be observed that the real underlying issues that have arisen in this case are, it seems to me, in essence questions of fact which are a matter for determination by the court of trial, the District Court.

The cases stated relate to the prosecution of two defendants, Jacqueline Alcock and Terence Alcock. While there are two Cases Stated, and the facts relevant to the Case Stated differ in each case to a minor extent, for present purposes they are substantially the same and the questions posed are the same in each case. Therefore I will deal with both Cases Stated in this ex-tempore judgment. The Cases Stated are annexed for the purpose of the general background of the case and the terms of the questions as posed.

They arise essentially out of the use of or the recourse to s. 4 of the Criminal Justice Act 1984 by an investigating Garda member when he was investigating the matters in relation to which the defendants in the main proceedings were ultimately charged.

Section 4 applies to any offence for which a person may be punished by imprisonment for a term of five years or by a more severe penalty. Section 4(2) provides that where a member of the Garda Siochana arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which the section applies, that person may be taken to and detained in a Garda station for such period as is authorised by this section, if the member of An Garda Siochana in charge of the station to which he is taken on arrest, at the time of that person’s arrival at the station, has reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.

I should emphasise that it is not sufficient for the member in charge of the station to have reasonable grounds for suspecting that the person in question may have committed the offence, he must have reasonable grounds for believing that the person’s detention is necessary for the proper investigation of the offence.

These provisions in the Criminal Justice Act 1984 marked a significant and fundamental change in the powers of the Gardai to arrest and detain persons, not for the purposes of charging them or bringing them before a Court, but for the purpose of investigating offences to which the section applies and thereby questioning suspects. It is a power which can only be exercised by the arresting member when he or she has reasonable cause to suspect a person of having committed a relevant offence and can only be exercised by the member in charge when he or she has reasonable grounds for believing that the detention of the person is necessary for the proper investigation of the offence.

The manner in which these powers are circumscribed are of fundamental importance because they are designed to ensure that there is no abuse by the Gardai or by individual Garda members of the powers concerned. The power is intended for use only in connection with serious offences, that is offences punishable by imprisonment for a term of five years or more, and intended to be excluded from that are lesser and minor offences. Therefore the role of the Courts in supervising the exercise of such powers is an important one in order to ensure that they are used strictly within the ambit which the law permits. However in doing so the issues that arise in relation to the exercise of those powers would primarily be questions of fact to be determined by the trial Court.

The First Question

The first question posed is: “Does the decision of the Director of Public Prosecutions to prefer summary charges following an arrest and detention under s. 4 of the Criminal Justice Act 1984 undermine the arresting member’s reasonable cause and thereby retrospectively render the said period of detention unlawful?”

In considering the answers to that question and indeed to two of the other questions, namely question three and four, it must be borne in mind that the functional role of the Gardai in relation to the exercise of powers under s. 4 is investigative, being a power conferred on them for the purpose of investigating offences and that is why the arresting Garda must have reasonable cause to suspect a person of having committed the offence. Thus, those functions are related to the investigatory role of the Gardai. In contrast a decision whether or not to prosecute is a decision which is taken at or near conclusion of an investigation and concerns a prosecutorial function.

A decision first of all as to whether any prosecution should be brought is taken on the basis of the totality of the evidence and material in the hands of the D.P.P. or, as the case may be, the prosecuting Garda, and similarly, any decision as to what charges to bring is also decided on the basis of the totality of the evidence and material available at that stage. It may well be that after due consideration of the nature of the evidence and the requirements of the law that a particular decision is taken one way or the other on the question of whether or not to prosecute and, if so, which charges, either summary or indictable, should be preferred. That is a separate and distinct function of the prosecutor and the distinctions between investigatory functions and prosecutorial functions must be taken into account in determining what the response to the first question should be.

In my view whether an arresting member had a reasonable cause to suspect a person for the purpose of s. 4 of the Act of 1984 is a matter of fact to be determined by the District Court Judge on the basis of the evidence before him. It may well be that the fact that only summary charges were brought might be considered part of the overall factual matrix that he would take into account when making such a decision on the facts and evidence before him, but that is not a decisive or determinative factor. The fact that the D.P.P. subsequently decides to prefer summary charges only against that person does not preclude a finding of the existence of reasonable cause if the evidence leads to that conclusion. In short the answer to the first question should be that the mere fact that the D.P.P. decides to prefer a summary charge subsequent to a Garda investigation which involved an arrest under s. 4 of the Act of 1984 does not render an arrest under the said section unlawful or, the period of detention unlawful, as it is put in the question posed.

The Second Question

The second question as posed by the District Court Judge is: “Am I entitled to conclude that the member in charge possessed the requisite independent bona fide belief in circumstances where he relied exclusively on the application of the arresting member and carried out no investigation either of the complainant or the complaint whatsoever?”

In regard to this question, it is, as I have already indicated, a question of fact for the trial Court to decide whether the member in charge did indeed possess, as it is put in the question, an independent bona fide belief and it must be a belief based on reasonable grounds that the detention is necessary for the further investigation of the offence. It seems clear to me, that it is not necessary for the member in charge to conduct an investigation of the complainant or the complaint in order to be in a position to have, at the time of the arrival of the person arrested under s. 4 at the Garda Station, reasonable grounds for believing that his detention is necessary for the proper investigation of the offence. The obligation of the member in charge in that context is very succinctly and clearly set out in the following dictum of Hederman J., which is cited in the Case Stated, in the The People (D.P.P.) –v- O’Toole & Hickey

      "[I]n interpreting subsection 2 of s.4 of the 1984 Criminal Justice Act, the trial judge must satisfy himself that the member in charge of the Garda Síochána Station must have an independent bona fide belief that the person who has arrived in custody arrested without warrant is a person who should be detained by him for a period not exceeding six hours from the time of the arrest as a necessary part of the proper investigation of the offence for which the person has been brought into the Station. That independent opinion of the Sergeant can be formed as a result of information given to him, either prior to the arrest or even when the arrested person is brought to the Station. What is necessary under the section is that the Sergeant in charge makes an independent decision on the information supplied to him and comes to his or her personal decision that the detention of the person brought to the Station is then necessary for the proper investigation of the offence for which he has been charged"
It remains a question of fact for the District Court Judge to determine on all the evidence before him whether he is satisfied that the requirements of the section have been complied with.

The Third Question

The next question is: “If the member in charge did in fact possess the requisite independent bona fide belief does the decision of the D.P.P. to prefer summary charges following an arrest and detention under s. 4 of the Criminal Justice Act 1984 undermine the said member in charge’s independent bona fide belief and thereby retrospectively render the period of detention unlawful?”

The answer to that question must be no, for the reasons which I have already mentioned in addressing the first question when I referred to the distinction between the function and role which the Gardai are exercising when investigating an offence and exercising powers under s. 4 and the ultimate decision of the D.P.P. to prefer summary charges. A subsequent decision of the D.P.P. or other authorised persons to prefer summary charges does not retrospectively undermine the independent bona fide belief of the member in charge but whether that exists is a matter for the District Court Judge to decide on all of the evidence before him.

The Fourth Question

The fourth question states that: “If s. 4 of the Criminal Justice Act 1984 was properly invoked is the D.P.P. estopped from preferring summary charges?”

Again for the reasons I have stated and in particular the distinction between the investigative role of the Gardai when exercising powers under s. 4 of the Act of 1984 and that of the D.P.P., they being distinct and separate, it cannot be said that the exercise of a power of arrest pursuant to s. 4 of the Act of 1984, in the course of an investigation, precluded or estopped the D.P.P. from subsequently preferring summary charges or otherwise when exercising his functions in that respect.

Accordingly the questions 1, 3 and 4 should be answered in the negative and question 2 should be answered in the positive, namely that he is entitled to so conclude, if, as indicated, the evidence leads the District Court Judge to that conclusion. These answers accord with those given in the High Court judgment although the reasons given here differ somewhat because it is not all evident from the Cases Stated that the District Court Judge has in fact already decided the questions of fact relating to the exercise of powers pursuant to s. 4. which the High Court appear to have assumed.

CASES STATED REFERRED TO


An Chúirt Dúiche The District Court

District Court Area of Cobh District No. 20

IN THE MATTER OF SECTION 2 OF SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961


BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

AT THE SUIT OF GARDA MICHAEL DILLANE

OF AN GARDA SÍOCHÁNA, COBH STATION, COBH, COUNTY CORK

PROSECUTOR
AND

TERENCE ALCOCK

OF 39 BAYVIEW, COBH, COUNTY CORK

ACCUSED

__________________________________

APPEAL BY WAY OF CASE STATED

___________________________________

This is a case stated by me, Michael Pattwell, a Judge of the District Court assigned to District Court number 20, pursuant to section 2 of the Summary Jurisdiction Act, 1857 as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961

1. At a sitting of Cobh Distict Court held at the Courthouse, Cobh, County Cork on the 25th day of January 2006, Terence Alcock, the accused herein (hereafter referred to as “the Accused”) appeared before me to answer a complaint the subject matter of three charge sheets in which he was charged with the following offences, to wit, that on the 27th day of October 2005 at West Beach, Cobh, County Cork, a public place:

      (a) on a date unknown between the 27th day of October 2005 and the 27th day of October 2005 assaulted a David Parker contrary to section 2 of the Non-Fatal Offences Against the Person Act, 1997;

      (b) did use or engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice (Public Order) Act, 1944; and

      (c) while committing/appearing to be about to commit an offence, to wit, assault in the course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, to wit, a hurley contrary to section 11 of the Firearms and Offensive Weapons Act, 1990.

A copy of the charge sheets, which forms part of this case stated, is attached at Annex. 1.

2. At the said hearing the Director of Public Prosecutions was represented by Inspector Martin Dorney of An Garda Síochána, Midleton Station, Midleton, County Cork. Mr. Barry Sheehan, Solicitor of “Ravensdale”, Church Road, Douglas, Cork represented the Accused.

3. The facts as proved or admitted or agreed, and as found by me were as follows:

      (a) In or around 14.35 hours on the 27th day of October 2005 at Low Road, Cobh, County Cork, the Accused was arrested by Garda Michael Dillane (hereafter referred to as “the Prosecutor”) without warrant pursuant to section 4 of the Criminal Law Act, 1997 for an alleged offence under section 11 of the Firearms and Offensive Weapons Act, 1990.

      (b) In or around 14.36 hours, the Accused arrived in custody at Cobh Garda Station where at approximately 14.49 hours the Prosecutor applied to Garda Bryan Griffin (hereafter referred to as “the Member in Charge”) to have the Accused detained pursuant to section 4 of the Criminal Justice Act, 1984 for an alleged offence under section 11 of the Firearms and Offensive Weapons Act, 1990. In his oral evidence the Prosecutor stated that the said application was based upon a statement of complaint he had received earlier that day from a David Parker (hereafter referred to as “the Complainant”) together with a witness statement from Mr Parker’s partner Noreen Broderick, where they alleged that the Accused during the course of a dispute had produced a hurley with which he assaulted the Complainant, in addition to several telephone calls received at Cobh Garda Station. On cross-examination, the Prosecutor confirmed that he did not carry out any further investigation of either the Complainant or the subject matter of the complaint before effecting the said arrest of the Accused.

      (c) In his viva voce evidence, the Complainant alleged that he had suffered a bruise to the upper part of his left shoulder blade from the Accused’s hurley

      (d) In his oral testimony, the Member in Charge stated that he was satisfied that he had reasonable grounds for detaining the Accused pursuant to section 4 of the Criminal Justice Act, 1984 on the basis of the short application made to him by the Prosecutor. On cross-examination, the Member in Charge confirmed that he did not carry out any form of background check on the Complainant nor did he investigate any aspect of the complaint, rather he had relied solely upon the application made to him by the Prosecutor.

      (e) In or around 14.52 hours, the Accused was informed by the Member in Charge that she was being detained pursuant to section 4 of the Criminal Justice Act, 1984, and was advised of his right to contact a solicitor. He was subsequently placed in a holding cell.

      (f) In or around 14.59 hours, at the request of the Accused, the Member in Charge contacted Don Ryan, Solicitor however, Mr Ryan was unavailable to attend. At the Accused’s request, Mr Sean Mulvihill, Solicitor was contacted at approximately 15.07 hours, but never attended at the station.

      (g) In or around 15.16 hours , the Member in Charge requested the Accused to consent to his fingerprints, palm prints and photographs being taken. The Accused agreed and signed the designated form of consent.

      (h) In or around 15.50 hours, the Accused was interviewed by the Prosecutor. Present during the course of the said interview were Garda Diana Ryan and, with the Accused’s consent, Student Garda Aidan O’Mahony.

      (i) In or around 16.42 hours the interview was concluded and the Accused was returned to the holding cell. In or around 17.35 hours, the Accused was taken to the doctor’s room where his fingerprints, palm prints and photographs were taken by Garda Donacha Riordan and Student Garda Aidan O’Mahony.

      (j) The Accused was subsequently returned to the holding cell and at approximately 19.25 hours was informed by the Member in Charge that he was being released from the provisions of section 4 of the Criminal Justice Act, 1984. The Accused was subsequently charged by the Prosecutor for assault contrary to section 2 of the Non-Fatal Offences Against the Person Act, 1997 and for using or engaging in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice (Public Order) Act 1994, detained in custody overnight and brought before Fermoy District Court on the 28th day of October 2005 on foot of the said charges. The Accused was further charged with while committing /appearing to be about to commit an offence, to wit, assault in thre course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, to wit, a hurley contrary to section 11 of the Firearms and Offensive Weapons Act, 1990 on the 14th day of December 2005 and brought before Cobh District Court on foot of the said charge on the said date.

      (k) At Fermoy District Court, the Accused was remanded on bail to appear before Cobh District Court on the 9th day of November 2005, the matter was adjourned for mention to the 23rd day of November 2005 and, following a number of subsequent adjournments, was eventually listed for hearing before Cobh District Court on the 25th day of January 2006.

      (l) When the matter came on for hearing on the 25th day of January 2006, Mr. Sheehan made a preliminary submission to the effect that I should dismiss the charges alleged in the charge sheets on the basis that section 4 of the Criminal Justice Act, 1984 had not been validly invoked and consequently the Accused had been unlawfully detained. Mr. Sheehan relied upon a number of superior court authorities in support of his submission, in particular People (DPP) v. O’Toole and Hickey, unreported, Court of Criminal Appeal, 20 July 1990, which he opened to the Court. In the alternative, Mr. Sheehan argued that as the statutory power of detention under section 4 of the Criminal Justice Act, 1984 only applies to offences “for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty” the Director of Public Prosecutions was estopped from preferring summary charges.

      (m) I formed the view that I could not address Mr. Sheehan’s submission in the absence of oral evidence as to the arrest and detention of the Accused, and in the circumstances directed that the case proceed. Inspector Dorney opened the prosecution’s case and called the Prosecutor, the Member in Charge, the Complainant and Ms Broderick as witnesses. Mr. Sheehan confined his cross-examination of these witnesses to questions touching upon matters raised in his preliminary submission, and reserved the Accused’s right of cross-examination pending adjudication by me of the preliminary issue. At the close of the prosecution’s case, Mr. Sheehan renewed his application to dismiss the charges preferred.

THE LAW

In order for a person to be lawfully detained in police custody following his arrest, the arresting member of the Garda Síochána must have “reasonable cause” for suspecting that such person has committed an offence “for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty” and “the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence”. Subsections (1) and (2) of section 4 of the Criminal Justice Act, 1984.

QUESTIONS

(I) Does the decision of Director of Public Prosecutions to prefer summary charges following an arrest and detention under section 4 of the Criminal Justice Act, 1984 undermine the arresting member’s “reasonable cause” and thereby retrospectively render the said period of detention unlawful?

(II) In People (DPP) v. O’Toole and Hickey, unreported, Court of Criminal Appeal, 20 July 1990 Hederman J. stated, at page 30 of the judgment, that:

      [I]n interpreting subsection 2 of s.4 of the 1984 Criminal Justice Act, the trial Judge must satisfy himself that the member in charge of the Garda Síochána Station, must have an independent bona fide belief that the person who has arrived in custody arrested without warrant, is a person who should be detained by him for a period not exceeding six hours from the time of the arrest as a necessary part of the proper investigation of the offence, for which the person has been brought in to the Station. That independent opinion of the Sergeant can be formed as a result of information given to him, either prior to the arrest or even when the arrested person is brought to the Station. What is necessary under the section is that the Sergeant in charge makes an independent decision on the information supplied to him and comes to his or her personal decision that the detention of the person brought to the Station is then necessary for the proper investigation of the offence for which he has been charged.
Am I entitled to conclude that the Member in Charge possessed the requisite “independent bona fide relief” in circumstances where he relied exclusively upon the application of the arresting member and carried out no investigation of either the Complainant or the complaint whatsoever?

(III). If the Member in Charge did in fact possess the requisite “independent bona fide belief” does the decision of Director of Public Prosecutions to prefer summary charges following an arrest and detention under section 4 of the Criminal Justice Act, 1984 undermine the said Member in Charge’s “independent bona fide belief” and thereby retrospectively render the said period of detention unlawful?

(IV) In the alternative, if section 4 of the Criminal Justice Act, 1984 was properly invoked, is the Director of Public Prosecutions estopped from preferring summary charges?

Having heard the submissions of both Mr.Sheehan and Inspector Dorney, I found in favour of the prosecution in respect of each of the four questions raised above.

      (n) The Opinion of the High Court is sought on the question as to whether I was correct in law in so doing.
Dated this 22nd day of June 2006 ___________________

Michael Pattwell

Judge of the District Court


An Chúirt Dúiche The District Court

District Court Area of Cobh District No. 20

IN THE MATTER OF SECTION 2 OF SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961


BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

AT THE SUIT OF GARDA MICHAEL DILLANE

OF AN GARDA SÍOCHÁNA, COBH STATION, COBH, COUNTY CORK

PROSECUTOR
AND

JACQUELINE ALCOCK

OF 39 BAYVIEW, COBH, COUNTY CORK

ACCUSED

__________________________________

APPEAL BY WAY OF CASE STATED

___________________________________

This is a case stated by me, Michael Pattwell, a Judge of the District Court assigned to District Court number 20, pursuant to section 2 of the Summary Jurisdiction Act, 1857 as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961

1. At a sitting of Cobh Distict Court held at the Courthouse, Cobh, County Cork on the 25th day of January 2006, Jacqueline Alcock, the accused herein (hereafter referred to as “the Accused”) appeared before me to answer a complaint the subject matter of two charge sheets in which she was charged with the following offences, to wit, that on the 27th day of October 2005 at West Beach, Cobh, County Cork, a public place:

      (a) did use or engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice (Public Order) Act, 1944: and

      (b) while committing/appearing to be about to commit an offence, to wit, assault in the course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, to wit, a hammer contrary to section 11 of the Firearms and Offensive Weapons Act, 1990.

A copy of the charge sheets, which forms part of this case stated, is attached at Annex. 1.

2. At the said hearing the Director of Public Prosecutions was represented by Inspector Martin Dorney of An Garda Síochána, Midleton Station, Midleton, County Cork. Mr. Barry Sheehan, Solicitor of “Ravensdale”, Church Road, Douglas, Cork represented the Accused.

3. The facts as proved or admitted or agreed, and as found by me were as follows:

      (a) In or around 17.57 hours on the 27th day of October 2005 at Low Road, Cobh, County Cork, the Accused was arrested by Garda Michael Dillane (hereafter referred to as “the Prosecutor”) without warrant pursuant to section 4 of the Criminal Law Act, 1997 for an alleged offence under section 11 of the Firearms and Offensive Weapons Act, 1990.

      (b) In or around 17.58 hours, the Accused arrived in custody at Cobh Garda Station where at approximately 18.09 hours Garda Bryan Griffin (hereafter referred to as “the Member in Charge”) requested the Accused to consent to her fingerprints, palm prints and photographs being taken. The Accused agreed and signed the designated form of consent.

      (c) In or around 18.16 hours, the Prosecution applied to the Member in Charge to have the Accused detained pursuant to section 4 of the Criminal Justice Act, 1984 for an alleged offence under section 11 of the Firearms and Offensive Weapons Act, 1990. In his oral evidence, the Prosecutor stated that the said application was based upon a statement of complaint he had received earlier that day from a Noreen Broderick (hereafter referred to as “the Complainant”) together with a witness statement from Ms. Broderick’s partner David Parker, where they alleged that the Accused during the course of a dispute had produced a hammer with which she assaulted, but not battered, the Complainant. On cross-examination, the Prosecutor confirmed that he had relied solely upon the said statements and did not carry out any further investigation of either the Complainant or the subject matter of the complaint before effecting the said arrest of the Accused.

      (d) In her viva voce evidence, the Complainant alleged that the Accused had assaulted her by holding a hammer in front of her face, but that no physical contact had occurred.

      (e) In his oral testimony, the Member in Charge stated that he was satisfied that he had reasonable grounds for detaining the Accused pursuant to section 4 of the Criminal Justice Act, 1984 on the basis of the short application made to him by the Prosecutor. On cross-examination, the Member in Charge confirmed that he did not carry out any form of background check on the Complainant nor did he investigate any aspect of the complaint, rather he had relied solely upon the application made to him by the Prosecutor.

      (f) In or around 18.18 hours, the Accused was informed by the Member in Charge that she was being detained pursuant to section 4 of the Criminal Justice Act, 1984, and was advised of her right to contact a solicitor. The Accused voluntarily waived this right. She was subsequently taken to the doctor’s room where her fingerprints, palm prints and photographs were taken by Garda Donacha Riordan.

      (g) In or around 18.21 hours, the Accused was interviewed by the Prosecutor. Present during the course of the said interview were Garda Diana Ryan and, with the Accused’s consent, Student Garda Aidan O’Mahony.

      (h) In or around 19.02 hours, the interview was concluded. At approximately 19.10 hours the Accused was informed by the Member in Charge that she was being released from the provisions of section 4 of the Criminal Justice Act, 1984 and she was subsequently discharged from custody.

      (i) The Accused was subsequently charged by the Prosecutor on the 14th day of December 2005 with using or engaging in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned contrary to section 6 of the Criminal Justice (Public Order) Act, 1994 and with while committing/appearing to be about to commit an offence, to wit, assault in the course of a dispute producing in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, to wit, a hammer contrary to section 11 of the Firearms and Offensive Weapons Act, 1990 and brought before Cobh District Court on foot of the said charges on the said date.

      (j) Following a number of adjournments, the matter was eventually listed for hearing before Cobh District Court on the 25th day of January 2006.

      (k) When the matter came on for hearing on the 25th day of January 2006, Mr. Sheehan made a preliminary submission to the effect that I should dismiss the charges alleged in the charge sheets on the basis that section 4 of the Criminal Justice Act, 1984 had not been validly invoked and consequently the Accused had been unlawfully detained. Mr. Sheehan relied upon a number of superior court authorities in support of his submission, in particular People (DPP) v. O’Toole and Hickey, unreported, Court of Criminal Appeal, 20 July 1990, which he opened to the Court. In the alternative, Mr. Sheehan argued that as the statutory power of detention under section 4 of the Criminal Justice Act, 1984 only applies to offences “for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty” the Director of Public Prosecutions was estopped from preferring summary charges.

      (l) I formed the view that I could not address Mr. Sheehan’s submission in the absence of oral evidence as to the arrest and detention of the Accused, and in the circumstances directed that the case proceed. Inspector Dorney opened the prosecution’s case and called the Prosecutor, the Member in charge, the Complainant and Mr. Parker as witnesses. Mr. Sheehan confined his cross-examination of these witnesses to questions touching upon matters raised in his preliminary submission, and reserved the Accused’s right of cross-examination pending adjudication by me of the preliminary issue. At the close of the prosecution’s case, Mr. Sheehan renewed his application to dismiss the charges preferred.

THE LAW

In Order for a person to be lawfully detained in police custody following his arrest, the arresting member of the Garda Síochána must have “reasonable cause” for suspecting that such person has committed an offence “for which a person of full age and capacity and not previously convicted may under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty” and “the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence”. Subsections (1) and (2) of section 4 of the Criminal Justice Act, 1984.

QUESTIONS

(1) Does the decision of Director of Public Prosecutions to prefer summary charges following an arrest and detention under section 4 of the Criminal Justice Act, 1984 undermine the arresting member’s “reasonable cause” and thereby retrospectively render the said period of detention unlawful?

(II) In People (DPP) v. O’Toole and Hickey, unreported, Court of Criminal Appeal, 20 July 1990 Hederman J. stated, at page 30 of the judgment, that:

      [I]n interpreting subsection 2 of s.4 of the 1984 Criminal Justice Act, the trial Judge must satisfy himself that the member in charge of the Garda Síochána Station, must have an independent bona fide belief that the person who has arrived in custody arrested without warrant, is a person who should be detained by him for a period not exceeding six hours from the time of the arrest as a necessary part of the proper investigation of the offence, for which the person has been brought in to the Station. That independent opinion of the Sergeant can be formed as a result of information given to him, either prior to the arrest or even when the arrested person is brought to the Station. What is necessary under the section is that the Sergeant in charge makes an independent decision on the information supplied to him and comes to his or her personal decision that the detention of the person brought to the Station is then necessary for the proper investigation of the offence for which he has been charged.
Am I entitled to conclude that the Member in Charge possessed the requisite “independent bona fide relief” in circumstances where he relied exclusively upon the application of the arresting member and carried out no investigation of either the Complainant or the complaint whatsoever?

(III) If the Member in Charge did in fact possess the requisite “independent bona fide belief” does the decision of Director of Public Prosecutions to prefer summary charges following an arrest and detention under section 4 of the Criminal Justice Act, 1984 undermine the said Member in Charge’s “independent bona fide belief” and thereby retrospectively render the said period of detention unlawful?

(IV) In the alternative, if section 4 of the Criminal Justice Act, 1984 was properly invoked, is the Director of Public Prosecutions estopped from preferring summary charges?

Having heard the submissions of both Mr.Sheehan and Inspector Dorney, I found in favour of the prosecution in respect of each of the four questions raised above.

      (m) The Opinion of the High Court is sought on the question as to whether I was correct in law in so doing.
Dated this 22nd day of June 2006 ___________________

Michael Pattwell

Judge of the District Court











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