Supreme Court dismisses appeal where procedural arrest flaws do not invalidate District Court jurisdiction over theft conviction.

THE SUPREME COURT

[Appeal No. 51/2008]

[High Court Record No. 2006/21 J.R.]

FENNELLY J.

O’DONNELL J.

McKECHNIE J.

BETWEEN

OLIVER WHELTON

APPLICANT/APPELLANT

AND

DISTRICT JUDGE CONSTANTINE O’LEARY

RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie dated the 21st day of December 2010

On the 27th October, 2005, Mr. Whelton, the appellant herein, was charged with an offence (as amended) that on the 21st August,

2005, he did steal property, to wit a sum of money, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

Having entered a plea of not guilty, he was convicted of that offence on the 11th May, 2006, and subsequently sentenced to four

months imprisonment, the entirety of which was conditionally suspended. An appeal to the Cork Circuit Criminal Court against that

conviction remains pending. Nothing turns on that appeal in this Court: in fact it would only become relevant if the Court was minded

to grant an order of certiorari, in which case its existence would be a material fact in the discretionary nature of that order.

On the 15th January, 2007, the appellant obtained leave from the High Court (Peart J.) to seek an order of certiorari quashing both

conviction and sentence. Although the grounds specified in support of the leave application were numerous, they can be distilled into

two separate issues. It was alleged that (i) when the appellant was charged, the provisions of s. 10(2) of the Criminal Justice Act

1984 (the “Act of 1984”) were violated; and (ii) the gardaí failed to retrieve or retain and, in any event, to make available, the

complete and unedited C.C.T.V. footage of the events and circumstances surrounding this offence. By judgment dated the 19th

December, 2007, Birmingham J. rejected both claims. In the notice of appeal to this Court, the appellant seeks additional relief to that

originally prayed for. He now looks for a declaration that his detention on the 27th October, 2005, was unlawful and also that any

further continuation of the prosecution against him should be prohibited. As such reliefs were neither the subject of the leave order

or, indeed, argument in the High Court, I propose to disregard them for the purposes of this appeal. Therefore, the two live issues

relate to the s. 10(2) complaint and the C.C.T.V. footage complaint.

I have read the judgment of Fennelly J. on the latter point. I agree with the entirety of his judgment and I have nothing to add. This

judgment is, therefore, confined to the first issue which, as I will describe, has two aspects to it.

Save for one area, the facts upon which this appeal proceeds are substantially undisputed. On the 1st September, 2005, the

appellant was arrested, without warrant, by a member of An Garda Síochána under s. 4 of the Criminal Law Act 1997, and thereafter

was detained under s. 4 of the Act of 1984, on the basis that his detention was necessary for the proper investigation of the above

mentioned offence. Without any extension of the detention period, he was later released without charge.

On the 27th October, 2005, he received a phone call at about 12.00 midday from the investigating officer advising that he was to be

arrested and charged, inter alia, with the theft offence. By prior arrangement he met Detective Garda Murray outside Anglesea Garda

Station in Cork at 16.30 on that day. He was arrested and conveyed to the Bridewell Garda Station. At 16.40 he was detained by the

member in charge. At 17.45 he was charged with the relevant offence and was then released, having entered into recognisance to

appear at a future specified sitting of the District Court. From arrest to charge the period was, therefore, about one hour and fifteen

minutes.

Some controversy exists as to whether the arrest location was agreed to or insisted upon by the appellant or was the choice of the

investigating gardaí. This arises because Detective Garda Murray states that he always intended to have the appellant charged at the

Bridewell Station as this was the station where he was originally detained. He further says, which is denied, that prior to arrest he

informed the appellant of such decision. This conflict, at the factual level, was not solved and, in my view, does not require

resolution. The critical events were the arrest and charge which in law are the responsibility of the gardaí. I, therefore, consider the

case by reference to the entirety of the period above described.

On arrival at the Bridewell Station, the appellant was processed by the member in charge in accordance with the custody regulations

(Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119 of 1987)) and

placed in a cell. As it happened, the printer was out of order with the result that recourse to Anglesea Street Station was required so

that the appropriate charge sheet could be printed. This necessitated the appellant being detained for a period of approximately

twenty five minutes longer than would have been the case but for the malfunction. At all times it is said that the detention of the

appellant was solely for the purposes of administratively processing the charge, which exercise was conducted as expeditiously as

possible.

Under s. 10(2) of the Act of 1984, a person in the position of the appellant can be rearrested for any offence “for the purpose of

charging him with that offence forthwith”. (Para. 14 infra)

It is alleged on behalf of the appellant that, by reference to the timescale above outlined, he was not, following arrest, charged

“forthwith” with the theft offence, in accordance with section 10(2). The consequent breach of s. 10(2) not only rendered his

detention unlawful, but also deprived the District Court of jurisdiction to try him on the offence upon which he was later convicted.

Therefore, that conviction should be set aside.

In his judgment, Birmingham J. refers to the case of O’Brien v. Special Criminal Court & Anor [2008] 4 I.R. 514 in which, according to

the judge, the Supreme Court interpreted the word “forthwith” as imposing a more exact and stringent obligation than would have

been the case if words such as “as soon as practicable” had been used. Having distinguished O’Reilly v. The DPP (Ex tempore,

Unreported, High Court, O’Neill J., 10th December, 2007), the essence of Birmingham J.’s decision on this point can be found at p. 14

of the judgment, where it is stated:-

“In this case it has been expressly accepted on a number of occasions that the accused was arrested for the purpose of

being charged forthwith and while arguably he was not actually charged forthwith he was thereafter charged as soon as

practicable.” [Emphasis added]

It is doubtful in my view if there was any evidence to support the inclusion of the word “forthwith” in that finding. The submissions

cannot be relied upon in this regard nor do I interpret them as containing such an admission. Rather, I read them as outlining what the

subsection asserts should be done in contradistinction to what, in fact, was done. Secondly, it is quite clear that the test is not “as

soon as practicable”. In light of his reference to O’Brien (para. 10 supra), Birmingham J. could not have intended to convey that

impression by the passage quoted. The passage, however, starkly highlights the problem. Is there a sufficient compliance with the

subsection where a person has been rearrested “for the purpose of” being charged forthwith, but as a matter of court finding has not

been “actually charged forthwith”? [Emphasis added]

The second aspect of this issue arises only where a statutory infringement has been established, in which event the resulting

consequences must be addressed. In this case it is said that the District Court had no jurisdiction to try the appellant on the

preferred charge. Having quoted from The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39, and having referred to Director

of Public Prosecutions v. Stuart Clein [1981] I.L.R.M. 465 and Director of Public Prosecutions (McTiernan) v. Bradley [2000] 1 I.R.

420, Birmingham J. concluded, that absent any question of a conscious and deliberate violation of the appellant’s constitutional rights,

it mattered not how he was brought before the District Court. Consequently, irrespective of his decision on the s. 10(2) point, the

jurisdiction of the District Court was left untouched as was the validity of the conviction. This conclusion adheres to the decision in

Fawsitt.

There are, therefore, two aspects to this issue. As argued before the Court, the s. 10(2) point preceded the jurisdictional one.

Following that approach, I propose firstly, to deal with the interpretative problem.

Section 10 of the Criminal Justice Act 1984, as amended by s.24 of the Criminal Justice (Amendment) Act 2009, reads:-

“(1) Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is

released without any charge having been made against him, he shall not –

be arrested again in connection with the offence to which the detention related, or

be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by

whom he was arrested suspected, or ought reasonably to have suspected him of having committed,

except on the authority of a warrant issued by a judge of the District Court who is satisfied on information supplied on

oath by a member of the Garda Síochána not below the rank of superintendent that either of the following cases apply,

namely:

further information has come to the knowledge of the Garda Síochána since the person’s release as to his suspected

participation in the offence for which his arrest is sought, or

notwithstanding that the Garda Síochána had knowledge, prior to the person’s release, of the person’s suspected

participation in the offence for which his arrest is sought, the questioning of the person in relation to that offence,

prior to his release, would not have been in the interests of the proper investigation of the offence.

A person arrested under that authority shall be dealt with pursuant to section 4.

(1A) …

(2) Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any

offence for the purpose of charging him with that offence forthwith.

(3) ….”

The meaning of subs. (2) is essentially one of statutory interpretation. Despite an abundance of rules and sub-rules as to how a

legislative provision should be construed, and notwithstanding statutory intervention (generally, the Interpretation Acts 1937 to 1997

and the Interpretation Act 2005), the basic rule remains the primary rule: words should be given their plain, ordinary and natural

meaning set in the context of the surrounding statutory provision or, indeed, of the statute as a whole. To that may I add the

following which are entirely uncontroversial:

(a) As this is a penal statute the words must be construed strictly. Authority is hardly required for this proposition, but if

it is: The People (Director of Public Prosecutions) v. O’Toole & Hickey (Unreported, Court of Criminal Appeal, 20th July,

1990) at p.42, dealing with s. 4 of the Act of 1984; The People v. Farrell [1978] I.R. 13; and The Emergency Powers Bill,

1976 [1977] I.R. 159, where at p.173 it was said that “[a] statutory provision of this nature which makes such inroads

upon the liberty of the person must be strictly construed”.

(b) It must be presumed that words are neither tautologous or superfluous. The legislature must be expected not to have

been wasteful in its word use: Cork County Council v. Whillock [1993] 1 I.R. 231 at 239;

(c) All words must be given a meaning; it must be presumed that they were inserted for a purpose. Any construction

which leaves without a meaning words in a statute, will normally be rejected. See Maxwell on The Interpretation of

Statutes, 12th Ed.,(London, 1997) at p.36; Whillock, ibid at 237; and Bennion, Statutory Interpretation, 4th Ed.,

(London,2002) at pp. 993 to 994.

The context of this provision must be viewed against the right of a person to his freedom and his liberty. This right is antecedent to

the Constitution. It is also enshrined in the Constitution by virtue of Article 40. Therefore, this fundamental right in a democratic state

governed by the rule of law cannot be affected by unlawful detention. Evidently, arrest and detention without charge is a significant

imposition on this right. The position of a person prior to charge is quite different to a person who has been charged. The former, in

addition to his constitutional right to freedom, has a right to his good name and his assumed innocence is unaffected even by charge.

Therefore, any intrusion on such right is to be saved only if strictly within the statutory parameters, otherwise there will not be a

detention in accordance with law.

Prior to 1984 the gardaí had no power to detain a person for the purposes, inter alia, of (i) furthering their investigation of a

suspected crime; (ii) formulating a charge; or (iii) conveniently gathering or assembling evidence. If they did, the person’s detention

would have been unlawful and, save for those situations covered by the Offences Against the State Acts 1939 to 1998, which are

not relevant here, his immediate release would have been ordered. Section 4 of the Act of 1984 conferred for the first time such a

power of detention where necessary for the proper investigation of the offence. By reference to offences carrying a term of

imprisonment of five years or more, a person, who has been arrested without warrant on suspicion of having committed such an

offence, can be detained for an initial period of six hours and, on the direction of an officer not below the rank of superintendent, for

a further six hours. By virtue of s. 9 of the Criminal Justice Act 2006, a further twelve hours may be specified on the direction of a

chief superintendent or a person of higher rank. In all, detention for twenty four hours is now possible under the section, with such

detention being for the purposes of investigating an offence. Consequently, this provision is a significant one, not only from the

gardaí’s point of view, but also from the subject’s point of view.

It is, therefore, not at all surprising that one finds a provision such as s. 10 also inserted in the same Act. That section, as its

principal rule, prohibits the rearrest of a person, inter alia, for the same offence who previously has been detained on suspicion of

having committed the offence and released without charge. That prohibition has two exceptions. Firstly, it can be disapplied on the

authority of the District Court when further information has come to light. In such cases, there is judicial supervision over the grounds

upon which the rearrest is sought. Secondly, subs. (2), which requires no judicial intervention, permits the rearrest of a person “for

any offence for the purpose of charging him with that offence forthwith”. By its terms the offence underlying the rearrest is not

confined to that which resulted in the original arrest and detention. It may be any offence. What is required is that the arrest must

be “for the purpose of charging him with that offence forthwith”. It is as to the correct meaning of this phrase, in the context of the

facts as found, that gives rise to the first aspect of the issue being dealt with.

There are a number of authorities touching upon the interpretation of s. 10(2) of the Act of 1984, and a like provision in the Criminal

Justice (Drugs Trafficking) Act 1996 (the “Act of 1996”). As O’Reilly v. The D.P.P. (para. 10 supra) is under appeal, I do not propose

to refer to it. In Director of Public Prosecutions v. Early [1998] 3 I.R. 158, the High Court had to consider the meaning of s. 4(5) of

the Act of 1996. The scheme of that Act, relative to arrest without warrant, release without charge and rearrest, is similar to that

contained in the Act of 1984. Section 4, with modifications not here relevant, parallels s. 10 of the Act of 1984. Subsection (5) is

virtually identical to s. 10(2) of the Act of 1984.

At p. 169 of the report of Director of Public Prosecutions v. Early, McGuinness J. said the following:-

“Section 10(2) of the Act of 1984 and s. 4(5) of the Act of 1996 permit a further arrest for this purpose [to charge the

person with an actual offence] and for this purpose only. It is essential to distinguish carefully and clearly between arrest

for the purposes of detention for investigation and arrest for the purposes of charging the alleged offender, of bringing

him…before the court and of initiating the procedure under the Criminal Procedure Act, 1967…”

That observation is undoubtedly correct. If the purpose of the rearrest is not to charge the person with an offence, then clearly the

arrest is not covered by the subsection. That point is made in all of the cases, some of which I further refer to in a moment.

However, that in itself does not dispose of the interpretation issue. It simply disapplies the subsection if “the purpose” of the arrest is

not as provided for. But assuming the purpose is inclusive, it leaves unresolved what meaning should be given to the word “forthwith”

in the subsection. That particular point was not an issue in Early and consequently was not dealt with.

A case directly on s. 10(2) of the Act of 1984 Act is Massoud v. Watkins & Anor [2005] 3 I.R. 154. On the 4th November, 2003, the

applicant and his wife were arrested on suspicion of having obtained money by false pretences. They had received more than

€680,000 from an insurance company on foot of a fraudulent claim to the effect that the wife had undergone a particular surgical

procedure. The pair were detained under s. 4 of the Act of 1984, and subsequently had their period of detention extended under

subs. (3) of that section. At about 9.00 p.m. that evening, the gardaí reviewed the evidence then available. The investigating gardaí

had concerns that if released without charge, both might flee the jurisdiction. A decision was made to charge them with the offence

for which they were arrested. They were then told that they would be released from s. 4 detention, but would be rearrested for this

particular purpose. After the rearrest, which was effected at about 9.08 p.m., the applicant and his wife were placed in a cell until

11.35 p.m. when they were charged with the offence of conspiracy to defraud, apparently on the direction of the D.P.P. They were

kept in custody overnight and were brought before the District Court the next day, where they were remanded to appear on the 12th

November, 2003.

On the 7th November, 2003, leave was given to institute judicial review proceedings in which two issues were raised. The first is not

relevant. The second alleged that the applicant’s rearrest at 9.08 p.m. on the night in question and his subsequent detention were

unlawful as being contrary to the provisions of s. 10(2) of the Act of 1984. As a consequence he sought an order prohibiting the

D.P.P. from further prosecuting him on the conspiracy to defraud charge.

Gilligan J. found as a fact that the purpose of the rearrest was to charge the applicant with the offence of having obtained money by

false pretences. Sometime during the course of his subsequent detention, and following consultation with the D.P.P., a decision was

made to charge him not with the offence for which he was arrested, but rather with the offence of conspiracy to defraud. The trial

judge quoted with approval from Early and expressed the view that, following the rearrest of a person under s. 10(2), the gardaí are

not permitted to do anything relative to that person, other than that which is directed at charging him with the offence for which he

had been rearrested. The case was disposed of on the basis that the relevant provision did not permit a rearrest for the purposes of

the gardaí obtaining instructions from the D.P.P. as to what charge should be preferred and, secondly, as the rearrest had been for

the purposes of preferring a specific charge, it was not open to the gardaí or notice party to prefer a different charge. Once that

decision was taken, the learned judge found that the original arrest became unlawful as did his detention. As with Early, the facts of

Massoud did not draw specific attention to the requirement of charging “forthwith”.

Massoud, however, is also interesting in that the judge, having found a breach of Article 40.4.1 of the Constitution, went on to deal

with the consequences of such finding. Submissions were sought by Gilligan J. as to what order should be made. On the assumption

that the headnote to the report is correct, it would appear that the relief sought was granted, namely an order prohibiting the D.P.P.

from proceeding with the conspiracy charge. Whilst the jurisdiction point does not appear to have featured, and whilst it is also

unclear as to precisely what happened in the District Court, save that the charge must have been entered as otherwise no remand

would have been possible, it is noteworthy that the effect of the order was to prohibit the further prosecution of the applicant on the

conspiracy charge.

In O’Brien v. Special Criminal Court & Anor [2008] 4 I.R. 514, the applicant was arrested on the 6th April, 2004, at 8.45 p.m. under s.

30 of the Offences against the State Act 1939, as amended (“the Act of 1939”), on suspicion of being a member of an unlawful

organisation. His original detention was subsequently extended by a further twenty four hours. On the 8th April at 5.25 p.m., the

D.P.P directed that he be brought before the Special Criminal Court and there charged with such offence. No immediate action was

taken following receipt of this direction. At 8.25 p.m. he was released from his s. 30 detention and, at 8.35 p.m., he was rearrested

under s. 4 of the Criminal Justice Act 1997 in respect of the same offence. Having ascertained that the Special Criminal Court would

be sitting on the 9th April at 12.00 midday, the gardaí informed the applicant that he would be brought before that sitting of the

Court, and there charged with the offence in question. Thus, the applicant was originally arrested under s. 30 of the Act of 1939 and

was later rearrested under s. 4 of the Act of 1997.

In the proceedings instituted, several grounds of argument were advanced. Only one is of concern to this appeal. Where a person,

having previously been arrested and detained under s. 30 of the Act of 1939 and later released without warrant, is rearrested under

s. 4 of the Act of 1997, that rearrest is subject to the specific statutory requirements of s. 30(A) of the Act of 1939, as amended.

Subsection (3) of s. 30(A), which was inserted by s. 11 of the Offences against the State (Amendment) Act 1998, reads:-

“Notwithstanding subsection (1) of this section, the person to whom that section relates may be arrested for any offence

for the purpose of charging him with that offence forthwith.”

In other words, it is identical to s. 10(2) of the Act of 1984.

The allegation in O’Brien of interest to this Court rests on s. 30(A)(3) of the Act of 1939 under which a person’s rearrest is prohibited

unless it is for the purpose of charging him forthwith with the offence for which he was rearrested. In her judgment, Denham J., with

whom Murray C.J agreed, rejected the test within the section as being that of “as soon as practicable”. It was, as the section said,

“forthwith”. At p. 527 it is stated:-

“Therefore it is necessary to consider whether the applicant was charged, pursuant to s. 30A(3), that is “forthwith”. The

word “forthwith” is not a technical term, nor a term of art. It should be given its common and usual meaning. It is defined

in the Concise Oxford Dictionary as: “immediately; without delay”. Thus the law requires that a person in the position of

the applicant be charged immediately, without pause or delay. The term “forthwith” requires immediate action. This is in

contrast to the pragmatic requirement in the term “as soon as practicable…”

Having then posed the relevant question, the learned judge continued:-

“He was arrested at 8.35 p.m. on 8th April, 2004, and charged before the Special Criminal Court shortly before 12.00 noon

on 9th April, 2004. In all the circumstances this was “as soon as practicable”, but this is not the requirement of the law.

The law required that he be charged “forthwith”, and that was not done. Therefore his detention prior to charging was

unlawful.”

This is, therefore, clear authority directly on the point under consideration.

Fennelly J., with whom Murray C.J also agreed, delivered a separate judgment. Having set out the purpose of the subsection, namely

to prevent abuse by repetitive detention, he stated that the sole question was whether the applicant was charged “forthwith”. In

contrast this test imposed a more stringent requirement than “as soon as practicable”. With counsel’s submission that the word

“forthwith” must be equated with “immediate” or “at once”, the learned judge agreed. In answer to practicable problems which may

be encountered, such as travel, contacting judges, or assembling courts, the judge responded that “the answer is, I think, that a

person does not have to be brought before a court to be charged”. At p. 536, Fennelly J. concluded:-

“Consequently, because the applicant was not charged “forthwith” upon his arrest, his further detention thereafter was

unlawful. That is because the arrest had to be “for the purpose” of charging him. As a result, he was not lawfully brought

before the Special Criminal Court.”

It seems to me that the essence of the decision on this issue was governed by the construction of the word “forthwith”. I believe

that this is more likely than any suggestion that the decisive factor was not one of time but of purpose. It would have been open on

the evidence to conclude that the purpose of the arrest was to detain the applicant overnight and thereafter to bring him before the

Special Criminal Court for the purpose of charge. If that had been the basis, neither reference to, nor reliance on, the adverb would

have been necessary. It is therefore more likely in my view that the Court’s decision was on the “forthwith” issue. That being the

case, O’Brien can be considered as a direct authority on this point.

There are many situations not covered by s. 10(2) of the Act of 1984. I mention a number only by way of illustration; there may be

many more. The section has no application where:

(i) the purpose of the rearrest is unrelated to charging the person; such other reasons for rearrest may relate to ongoing

investigations or perceived flight risk, but clearly are not confined to these examples;

(ii) the purpose is not to charge the person with the offence grounding his rearrest;

(iii) at any time pre-charge, a decision is made not to charge the person with the offence last mentioned; the obligation

to remain within the section is a continuous one;

(iv) at any time pre-charge, the gardaí, relative to that person engage in any activity, by act or omission, which is not

directly and immediately related to charging the arrested person; and

(v) the charging is not “forthwith”, even if all of the other ingredients within the subsection are satisfied.

On the other hand the section clearly applies to a person who:

(i) following arrest has been detained pursuant to s. 4(2) of the Act of 1984. It is immaterial whether the detention period

has or has not been extended; and

(ii) is rearrested in respect of any offence, so as to charge him with that offence forthwith. The offence referred to is not

confined to that which caused his arrest in the first instance.

As above stated, the threshold is not “as soon as practicable” or, indeed, even “as soon as possible”. The preferred test was

deliberately chosen no doubt to minimise the intrusion into one’s constitutional right to freedom. Given s. 4 of the Act of 1984, one

can readily see the justification for this. Just as the right to liberty has not diminished, neither has the necessity to justify its

abridgment. The legislature confirmed this view as, when reacting to O’Brien, it reaffirmed, by retention, this requirement of

“forthwith”, albeit adding into s. 30(A)(3) of the Act of 1939, the further option of rearrest for the purpose of bringing the person

before the Special Criminal Court “as soon as practicable” (s.187 of the Criminal Justice Act 2006). No amendment to s. 10(2) of the

Act of 1984 however was made. Thus the adverb “forthwith” is an integral part of the statutory safeguard and in its context must be

construed by reference to its plain and ordinary meaning.

Dictionary definitions can be a guide and, in some cases, are helpful. All of quality offer, in most cases, several potential meanings for

any word search. Of necessity, this is the purpose of a dictionary. It suggests many options but leaves the definitive meaning to the

context of the inquirer. The definition of “forthwith” is no different. A few examples of its potential meaning include: at once;

immediately; instantly; promptly; quickly; directly; now; like a shot; or with no time intervention.

In my view, when this issue of law is raised there must be a finding that on rearrest the person is charged “forthwith”, otherwise s.

10(2) of the Act of 1984 is breached. I do not agree that a rearrest “for the purpose” of charging forthwith is sufficient if on the

facts the arrested person has not actually “been charged forthwith”. The consequences of the former fail to take account of or give

meaning to the very requirement of the subsection. On that view, once the “purpose” of the rearrest is to charge forthwith, it

matters not for how long the actual charge is delayed or the reasons therefore (absent any mala fides), provided the other elements

of the subsection have not been breached. That could lead to an abuse of freedom, whether deliberately or otherwise. The provision

was designed to prevent both.

The adverb “forthwith” is an adverb of time: time present and not time past or time to come. It answers the question as to “when”

the arrested person must be charged. It qualifies not the purpose of the arrest but the timing of the charge. However, it must be

viewed in context, in particular by reference to the provisions of ss. 4 and 10 of the Act of 1984. Section 10(2) is predicated on an

act of rearrest which, depending on circumstances, may be pre-planned, as here, or it may be fortuitous or random. These variations

may occur quite legitimately. The section does not deprive the gardaí of the power of detention following arrest, if the resulting

detention does not breach any requirement of the section, including the time element. That being so, it is difficult to see how a

construction demanding instant charge is what the provision envisages. To so hold, could mean having to charge a person in the most

extraordinary circumstances, which otherwise could not be justified and might render compliance with the provision impossible, as with

e.g. a fortuitous arrest. The legislature could never have so intended. In my view, the time requirement would be satisfied if the

arrested person was charged “promptly”, i.e. with pressing urgency. By this I mean a standard or threshold evidently more demanding

than “as soon as practicable”, but also more demanding than “as soon as possible”. It is one of imperative exigency. Time, so to

speak, is of the essence.

Such approach seems consistent with authority such as The Queen v. Justices of Berkshire (1878) 4 Q.B.D. 569, where Cockburn C.J.

stated at p. 471 that:-

“It is impossible to lay down any hard and fast rule as to what is the meaning of the word “immediately” in all cases. The

words “forthwith” and “immediately” have the same meaning. They are stronger than the expression “within a reasonable

time”, and imply prompt, vigorous action, without any delay, and whether there has been such action is a question of

fact, having regard to the circumstances of the particular case.”

Compliance with the statutory requirement can therefore only be judged by reference to the individual circumstances of each case.

As adverted to, there may well be differences between an absconder who by chance is randomly arrested and others whose

whereabouts and availability are well known. With the latter, the gardaí have virtually total control. They can generally decide when

and where to arrest. With the former, they may have none. Therefore, circumstances are of significance.

In this case the appellant falls acutely into the former group. He turned up by appointment at a given location, at a particular time

and for a particular purpose. His rearrest related to two offences which, from a charge point of view, had no unusual features. Charge

sheet no. 432096 verifies this. It reads:-

“That you the said accused/defendant did, on the 21/08/2008 at Tudor Leisure Centre, 28 Marlborough Street, Cork, in

the said District Court area of Cork City, District No. 19 steal property to wit (cash to the value of €700) the property of

Eamon O’Driscoll contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.”

In such circumstances, therefore, could it be said that given the time frame of one hour and fifteen minutes, the appellant was

charged “forthwith”?. In my view, it could not. The charge sheet could easily have been printed prior to his arrest and one wonders

why this was not done - convenience, I suspect, which in my view is unacceptable, as is the offered explanation regarding the

printer. I note, in any event, that such explanations account for only twenty five minutes of the period of detention. The balance, I

have no doubt, resulted from routine practice, casually pursued, in a manner quite indifferent to the appellant’s liberty. That is not

sufficient. Therefore, the appellant was not, as the section demands, charged promptly or with urgency. Such a time frame exceeded

the provisions of the statute and, consequently, the detention of the appellant was unlawful.

Finally, on this aspect of the case, I respectfully endorse the following passage of the judgment of the learned trial judge where he

said (at p.12):-

“For my part, I would deprecate any suggestion that persons should be placed in a cell as a matter of routine or, indeed,

a matter of administrative convenience. If an individual represents no security risk then I can see no reason why it would

be necessary to place him in a cell and why he could not be simply left to await developments in the public area of the

station.”

I entirely agree with this observation. It would be an entirely unacceptable situation if a person’s liberty was denied purely by way of

policy, or for convenience, when the purpose of his presence can be otherwise addressed.

The Jurisdictional Point

In The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 at 43, Davitt P., when discussing methods by which the attendance

of an accused person before the District Court can be secured, said:-

“He could, of course, attend, voluntarily, if he so wished; so far as the exercise of the Court’s substantive jurisdiction is

concerned it is perfectly immaterial in what way his attendance is secured, so long as he is present before the District

Justice in Court at the material time. Even if is brought there by an illegal process…”

The learned President quotes from Hawkins, Pleas of the Crown, 8th Ed., (1824), vol. 2 at p. 420, in support of this proposition, where

the justification offered was that “the law will not so far regard a slip in the process, as to let the defendant out of court in order

only to have him brought in again in better form”. He also referred to the case of R. v. Hughes (1879) 4 Q.B.D. 614, which Denham J.,

in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98 at 107, saw as being the case upon which “a body of Irish

precedent has been built.”

42. That was a case where the accused was a police constable who illegally procured a warrant for the arrest of a person called

Stanley upon a charge of assaulting and obstructing him in the discharge of his duty. Upon this warrant, Stanley was arrested and at

his trial the accused gave false evidence against him. As a result the justices convicted and sentenced Stanley to imprisonment. The

accused was afterwards indicted for perjury. He defended himself by asserting that the proceedings in which he had sworn were

coram non judice as the justices had, in the circumstances, no jurisdiction to try Stanley. That plea was ultimately rejected. In his

judgment, Lopes J. said (at p.622) “I think the warrant in this case was mere process for purpose of bringing the party complained of

before the justices, and had nothing whatever to do with the jurisdiction of the justices”. He continued by declaring that it mattered

not whether Stanley “was summoned, brought by warrant, came voluntarily, was brought by force, or under an illegal warrant”. Based

on such authority, Davitt P. so decided in Fawsitt.

43. Since then the issue has not only been touched by authority, but is now governed by a series of decisions which, repeatedly and

all to one voice, have held with the rule or principle outlined in Fawsitt. In Attorney General (McDonnell) v. Higgins [1964] I.R. 374 at

391, Kingsmill Moore J. said:-

“Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to

compel the attendance of the person accused of the offence…

It is equally clear that if a person is in Court, voluntarily or involuntarily, legally or illegally, an information or complaint

may be made there and then “ore tenus” to the Justice, accusing such person of having committed a summary offence,

and, if the information contains the necessary ingredients, the person may at once be charged with the offence …”

Reference was made to Reg (Daly) v. Justices of County Cork [1898] 2 I.R. 694, where, once again relying on Hughes, Gibson J. said

much the same. The fact that Higgins was not a case of arrest and detention, but one of procedural amendment, hardly takes from it.

In any event there are several other decisions to like effect including Director of Public (Ivers) v. Murphy [1999] 1 I.R. 98; The State

(Lynch) v. Ballagh [1986] I.R. 203; Director of Public Prosecutions v. Michael Delaney [1997] 3 I.R. 453; and Director of Public

Prosecutions (McTiernan) v. Bradley [2000] 1 I.R. 420. Therefore, as a matter of principle, the position seems well established and, at

least from my researches, does not appear to have been challenged.

This rule is not absolute and as cases have shown the exception list is not closed. It is however limited where the issue is whether

the validity of the preceding process may impact upon jurisdiction. To this, of course, may be added circumstances where it is alleged

that during the process evidence has been obtained by either illegal or unconstitutional means. Such cases are not jurisdictional

cases but cases of evidential admissibility. Habeas corpus applications and civil proceedings for damages are likewise not material.

The following are examples of where a preceding process may impact on jurisdiction:

(a) where there has been a deliberate and conscious violation of one’s constitutional rights. Keane J. in Killeen v. Director

of Public Prosecutions [1997] 3 I.R. 218 at 228 to 229 said:-

“[W]here the process by which the person is brought before the court involves a deliberate and

conscious violation of his constitutional rights, of which the most graphic example is the The

State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550, the court may be justified

in refusing to embark upon the hearing.”

(b) where the relevant conduct is of such a nature as to outrage, insult or defy the legal or constitutional authority or

status of the court. McCarthy J. in Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61 at 66 said:-

“If cases arise where the circumstances of arrest are such as to amount to an affront to the

constitutional role of the courts, then the District Justice will refuse to proceed with the matter

and will discharge the person before him.”

O’Flaherty J. in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98 at 104 seems to have

inferred the same.

(c) where the validity of a preceding event, for example an arrest, is an essential ingredient to ground a charge upon

which an accused person stands before the court. See s. 49 of the Road Traffic Act 1961, as amended, and D.P.P. v.

Forbes [1993] I.L.R.M. 817.

46. Apart from the above I have not been able to identify any other example where in like circumstances a successful challenge to

jurisdiction has been mounted. I remain conscious of Massoud in this context, in which the Court undoubtedly prohibited the further

prosecution of the applicant on the basis of a prior unlawful detention under s. 10(2) of the Act of 1984. However, it is not absolutely

clear as to whether the jurisdictional point, as a point in its own right, had been raised. Therefore, it may be more prudent to exclude

that decision from the above list.

The cases last mentioned could not, however, have intended to close out an argument if conduct of the type above described was

established. I, therefore, take the view that there remains the possibility of future cases identifying circumstances where jurisdiction

will be refused. These may arise either under the Constitution, within a statutory framework or as Convention cases. If and when

arising, each case will have to be considered on its own circumstances.

It is somewhat surprising to me that the court’s approach to process in this context seems somewhat indifferent. The rationale set

out in Hawkins is to the effect that once in court the preceding method of securing one’s attendance is at an end; that is, the

process is over, so why concern oneself with it? Why insist upon a person’s presence legitimately obtained via a non-objectionary

process? No matter how illegal, since the object has been secured, let the process continue. Hughes offers no better rationale. I must

say that I find this reasoning unattractive. The rule of law has a foundation not simply in substantive proceedings, but in all

proceedings. Due process must be protected. However, the appellant does not make such a case: he claims to come within the

exception to Fawsitt, as referred to at para. 44(a) supra. Therefore, further consideration of this point is not presently required.

The high point of the appellant’s case is that at some point between 16.30 and 17.45 on the afternoon of the 27th October, 2006,

but prior to charging, his detention became unlawful by virtue of non-compliance with s. 10(2) of the Act of 1984. Therefore, his

charging was tainted with illegality and, consequently, neither the charge sheet nor the bail bond were a valid means by which his

attendance at the District Court was secured. These events, which it is alleged were a deliberate and conscious violation of his

constitutional rights, impacted critically on the jurisdiction of the District Court. Hence, the relief of certiorari.

In accordance with the principles outlined above, the appellant simply cannot succeed on this point. The validity of his arrest or his

charging prior to his appearance before the District Court are not prerequisites to that Court having jurisdiction to try him on the theft

charge. It is no defence on his part to assert that his attendance was secured under pain of penal sanction and was, therefore,

involuntary. That very point was disposed of in The State (Lynch) v. Ballagh [1986] I.R. 203 at 213 where Walsh J. dealing with this

very point said:-

“Even assuming that his presence there was involuntary because of the bail bond of the recognisance, the complaint was

made there and then and that was sufficient to give jurisdiction to the District Justice in this summary offence.”

There cannot be any credible argument that by virtue of the presenting circumstances, there was a deliberate and conscious violation

of the appellant’s constitutional rights. No such conclusion can be drawn from the established case law. Therefore, the District Court

was at all times possessed of jurisdiction to try this offence and, in consequence, the resulting conviction cannot be set aside.

51. I would, therefore, dismiss the appeal.