Supreme Court allows DPP appeal, holding continued detention lawful under new statutory provision despite changed questioning topic.

THE SUPREME COURT

[Appeal No: 428/2012]

Murray J.

Hardiman J.

Fennelly J.

Clarke J.

MacMenamin J.

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor/Appellant

and

M.C.

Defendant/Respondent

Judgment of Mr. Justice Clarke delivered the 9th April, 2014.

1. Introduction

1.1 The entitlement of An Garda Síochána to arrest persons suspected of crime and, in certain circumstances permitted by law, to

question such persons is a vital part of the criminal justice process. However, it is equally true that a very high constitutional weight

attaches to the rights of all citizens to their freedom so that it is more than appropriate that the courts exercise vigilant scrutiny on

questions concerning whether arrest and detention are legally valid. It is, of course, also the case that the question of the validity of

a person's custody can have a bearing on the admissibility of evidence obtained during that custody for the jurisprudence of the

courts in this jurisdiction stretching back at least to Director of Public Prosecutions v Kenny [1990] 2 I.R. 110 makes clear that

evidence obtained during constitutionally unlawful custody will not be admitted save in exceptional circumstances. The issues which

arise on this appeal concern one particular aspect of the arrest regime which applies in respect of certain types of offences and

which permits arrest and questioning of suspects during custody.

1.2 The defendant/respondent ("Mr. C.") was arrested on suspicion of membership of an illegal organisation viz the I.R.A. His arrest

followed from a search of his home on the 11th September, 2010, which commenced at a time when he was not present but

continued after his return. An electrical grinder and ammonium nitrate were found in a shed at the side of the house.

1.3 At a point during his custody, Mr. C. was informed that the questioning would turn from issues concerning membership to the

explosives which had been found at his home. At a subsequent stage, he admitted responsibility for those items. Evidence of that

admission formed an essential part of the prosecution case at his subsequent trial in which he was charged only with possession of

explosives.

1.4 That trial took place before the Special Criminal Court which came to the view that the continued detention of Mr. C., subsequent

to the change in questioning from interrogation related to a possible membership of the I.R.A. to one which related to alleged

possession of explosives, was unlawful so that the admissions made occurred at a time when Mr. C. was in unlawful custody. While it

will be necessary to consider the legal basis for that finding in some detail, the substance of the view formed by the Special Criminal

Court was that s. 30(3A) of the Offences Against the State Act 1939 ("the 1939 Act"), as inserted by s. 21 of the Criminal Justice

(Amendment) Act 2009 ("subsection 3A") provided for a mandatory procedure which was to be followed when someone was to be

questioned in respect of an offence other than the one for which they were originally arrested. It had been common case at Mr. C.'s

trial that the relevant procedure provided for in subsection 3A had not been followed. The issue was as to whether subsection 3A

actually applied. In the view of the Special Criminal Court, subsection 3A did apply with the consequence that Mr. C.'s continuing

custody after there had been a change in the focus of his questioning, but in the absence of the procedures under subsection 3A

having been complied with, was unlawful. It further followed that the admissions made by him after that time were inadmissible and an

acquittal inevitably followed.

1.5 The prosecutor/appellant ("the D.P.P.") has referred a question of law to this Court under s. 34 of the Criminal Procedure Act

1967, which question is set out in a notice of reference of question of law dated the 21st August, 2012. Such a reference is, of

course, under the terms of the relevant legislation, without prejudice to the acquittal of Mr. C. The only issue which this Court has,

therefore, to address is the question of law so referred. That question concerns the manner in which the Special Criminal Court

interpreted subsection 3A. I, therefore, turn to that reference and the subsection.

2. The Reference, the Subsection and the Issue

2.1 The precise terms of the reference made by the D.P.P. are as follows:-

“WHEREAS the defendant stood trial before the Special Criminal Court on Bill of Indictment SCC 12/2010 charging one

count of unlawful possession of an explosive substance contrary to Section 4 of the Explosive Substances Acts, 1883 as

amended by Section 15 (4) of the Offences Against the State (Amendment) Act, 1998.

AND WHEREAS the admissibility of a confession (and the prosecution case) stood to be determined upon the Special

Criminal Court's construction of Section 30 (3A) of the Offences Against the State Act, 1939 as inserted by Section 21 of

the Criminal Justice (Amendment) Act, 2009 which provides

"(3A) If at any time during the detention of a person pursuant to this Section a member of the Garda Síochána,

with reasonable cause, suspects that person as having committed an offence (the "other offence') referred to in

subsection (1) of this section, be it an offence other than the offence to which the detention relates, and –

(a) The member of the Garda Síochána then in charge of the Garda station, or

(b) (Not applicable)

Has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation

of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the

offence for which the person was originally detained, but nothing in this subsection authorises the detention of a person

for a period that is longer than the period which is authorised by or under the other provisions of this Section."

AND WHEREAS the Defendant had been lawfully arrested on suspicion of membership of an unlawful organisation and the

Special Criminal Court holding that the said suspicion still subsisted at the time he was interrogated in relation to the said

offence of unlawful possession of explosives.

AND WHEREAS the prosecution submitted that the provisions of the said Section 30 (3A) only arose when the original

suspicion justifying arrest and detention had dissipated.

AND WHEREAS the Special Criminal Court ruled that the provisions of the said subsection applied and as "there was no

evidence from the member in charge relating to "reasonable grounds for believing" as referred to in the section "that

the continued detention of the accused for the purpose of questioning him in relation to offences other than membership

of an unlawful organisation and his questioning in relation to such other offences was unlawful.

AND THERE being no other evidence the Court directed an acquittal of the Defendant. The Director of Public Prosecutions

pursuant to Section 34 of the Criminal Procedure Act, 1967 and without prejudice to the verdict, now refers the following

question of law to the Supreme Court:

"Was the Special Criminal Court correct in its construction of Section 30 (3A) of the Offences Against the State

Act, 1939 as amended by Section 21 of the Criminal Justice (Amendment) Act, 2009?"

2.2 The issue, as has been pointed out, concerns the proper interpretation of subsection 3A. That subsection was inserted into the

original s. 30 of the 1939 Act. Section 30 of the 1939 Act allows a member of An Garda Síochána without warrant to, amongst other

things, arrest a person whom he suspects of having committed a scheduled offence for the purposes of that Act. Subsection (3) of s.

30 allows a person so arrested to be detained in custody in, amongst other places, a Garda Síochána station for a period of 24 hours,

subject to an extension of a further period of 24 hours on the direction of an officer not below the rank of Chief Superintendent.

2.3 In the context of subsection 3A, and its construction as a whole, it is appropriate to add that subsection 3A(b) allows, as an

alternative to the member in charge, the relevant opinion to be formed, where a suspect is detained other than in a Garda Síochána

station, by an officer not below the rank of inspector who is not investigating the original offence. That provision had no relevance to

the facts of this case because Mr. C. was detained in a garda station. However, it is of some relevance to note that subsection 3A

provides, in different circumstances, for a different specified senior member of An Garda Síochána to form the necessary opinion.

Subsection 3A thus allows continued detention where one or other of the members of An Garda Síochána specified at paras. (a) or (b)

has reasonable grounds for believing that the continued detention of the relevant suspect is necessary for the proper investigation of

what is called an "other offence" (which is defined as an offence other than the one to which the suspect's detention relates).

Subsection 3A provides that where a member of An Garda Síochána reasonably suspects a person in detention of having committed

such an other offence, and where the specified senior garda forms the belief that continued detention of the suspect is necessary for

the proper investigation of that other offence, detention may continue as if the other offence "was the offence for which the person

was originally detained" subject to limitations to ensure that the system is not abused by being used to extend the overall period of

detention.

2.4 There can be little doubt as to how that section works in a straightforward case. A suspect is arrested on suspicion of having

committed one scheduled offence. In the ordinary way, there would clearly be an obligation on the arresting gardaí to release that

person if, for whatever reason, they no longer had a suspicion that the suspect had committed the offence for which the arrest

occurred. However, if, in the course of the investigation, the arresting gardaí, while coming to the view that there were no longer

grounds for suspecting that the suspect committed the offence for which he was originally detained, nonetheless had reasonable

grounds for suspecting the individual concerned in respect of another scheduled offence, then the machinery of obtaining the

approval of the specified garda under subsection 3A must be complied with. Thus, in substance, the detention can be, as it were,

transferred from the original offence in respect of which the arrest occurred to a new or "other" offence. Such a "transfer" can, of

course, only occur if a senior specified garda has reasonable grounds for the necessary opinion in accordance with the terms of

subsection 3A.

2.5 However, the case made on behalf of the D.P.P., both before the Special Criminal Court and before this Court, is that a different

situation pertains where suspicion in respect of the new or "other" offence is not in substitution for a suspicion relating to the original

offence but rather is in addition to the suspicion in respect of the earlier offence.

2.6 In that potential distinction lies the dispute between the parties to this case. Counsel for the D.P.P. argues that subsection 3A

has no application to a case where the suspect remains the subject of a reasonable belief of having committed the original offence for

which the suspect was arrested but where a member of An Garda Síochána in addition has a reasonable belief in respect of the

commission of a second offence. Counsel for the D.P.P. argues that, in those circumstances, given that the original basis for the

arrest still subsists, it is unnecessary to rely on the provisions of subsection 3A and that, therefore, the subsection has no

application.

2.7 Counsel for Mr. C. argues that, on a proper construction of subsection 3A, same applies to any case where it is desired to

continue detention in respect of another offence so that the relevant procedures must be complied with. In substance, counsel for

Mr. C. argues that the regime provided for in subsection 3A is mandatory and does not, on its proper construction, permit, as counsel

for the D.P.P. argued, an alternative justification for continued detention where suspicion in respect of an offence other than the

original arises. Rather, it is argued, the procedure specified in subsection 3A (being that a specified senior garda has reasonable

grounds for the necessary opinion) applies in any case where a person is suspected of having committed an "other offence".

2.8 As was pointed out by counsel for Mr. C. in the written submissions filed, there are, essentially, two radically different

interpretations of the application of subsection 3A argued before the Court. The issue is very net but, nonetheless, very important for

it touches on the circumstances in which an individual may lawfully be deprived of their freedom.

3. Discussion

3.1 Counsel for Mr. C. was, of course, correct in suggesting that the alternative constructions put forward are radically different. It

must also be acknowledged that the backdrop to the construction of subsection 3A is that it forms part of a penal provision and must

be interpreted strictly. However, as MacMenamin J. pointed out in Delaney v. Judge Coughlan & ors [2012] IESC 40, a court is not

precluded from applying common sense notwithstanding the undoubted obligation to construe penal measures in a strict fashion.

3.2 While there is a lot of detail to be found in the provisions of subsection 3A, the operative provision, in my view, is that, if the

necessary conditions are met, the relevant person "may continue to be detained" (emphasis added). The subsection is, therefore,

permissive, rather than mandatory in its terms. It allows continued detention in certain circumstances. The subsection is not

structured in a way in which there is an express requirement that, in all cases where it is desired to conduct questioning in respect of

an offence other than the offence for which the suspect was arrested, a senior specified garda must have reasonable grounds for the

necessary opinion in accordance with the subsection. Rather the subsection permits continued detention on suspicion of a second or

"other offence" when the appropriate opinion of that specified garda has been reasonably formed.

3.3 The backdrop to the subsection must be to consider what the legal position was before its enactment. A person could be arrested

and detained under s. 30 of the 1939 Act for 24 or 48 hours if suspected of a scheduled offence. It must be taken to be implied into

that regime that the justification for detention must remain in being or else the suspect must be released. If relevant members of An

Garda Síochána no longer held a bona fide suspicion that the suspect had committed the offence in respect of which he was originally

arrested, then it seems to me that there would, ordinarily, be a clear duty to release. While the section speaks of detention for 24

hours (extendable by a senior garda to 48 hours), it could not be interpreted as permitting the full period of detention to be justified if

the underlying basis for the arrest in the first place had disappeared.

3.4 This much is clear from D.P.P. v. Howley [1989] I.L.R.M. 629, where, at p. 634, the following is stated:-

"It is already well established by the decision of this Court in The People v. Kelly [1983] ILRM 271, that it is quite

permissible for members of the Garda Síochána to put questions to a person in custody under section 30 of the Act of

1939, in respect of offences other than that for which he was arrested… There is nothing in the decision of any Irish

courts to suggest that the lawfulness of the detention, or as in this case the extension of the detention, is dependent

upon the offence or the suspected offence which is the occasion of the detention being the dominant concern of the

members of the Garda Síochána, when as the occasion arises, they may wish to question such detained person in

respect of offence or offences other than that in respect of which the detention order was made."

Both counsel agreed that the law, immediately prior to subsection 3A coming into force, was as stated in Howley.

3.5 I am satisfied, therefore, that the position which must be taken to have pertained immediately before subsection 3A was inserted

into the 1939 Act by s. 21 of the Criminal Justice (Amendment) Act 2009 was that a suspect was entitled to be released as soon as

the suspicion which justified an arrest in the first place has disappeared. I cannot see that there would have been any basis, provided

that the original suspicion continued to be bona fide held, why the suspect could not be asked, during the relevant period of

detention, questions about other potential offences. Whether the original suspicion continued to be bona fide held would, of course,

be a matter of fact for the court of trial. Whether lengthy questioning which related solely to some other offence might give rise to an

inference that the suspicion in respect of the offence for which the suspect was arrested either was never held or, if once held, was

no longer held, is a matter of inference also for the court of trial. However, at the level of principle, and provided that the court of

trial was satisfied that a bona fide suspicion in respect of the original offence continued to be held, then questioning in respect of

other offences would not, it seems to me, have rendered the custody of the suspect in question unlawful in any way. It should be

recalled that the reference from the Special Criminal Court in this case expressly records the view of that court that the suspicion of

membership of the IRA (being the offence for which Mr. C. was originally arrested) "still subsisted at the time he was interrogated in

relation to the said offence of unlawful possession of explosives".

3.6 What then can it be said that subsection 3A was designed to deal with? It seems to me to be clear from the permissive nature of

subsection 3A that it was designed to permit continued detention in cases where continued detention would not, otherwise, be

lawful. In other words, it was designed to permit detention in respect of the second or "other" offence when the suspicion in respect

of the first or original offence had disappeared, thus requiring, if subsection 3A were not there, the immediate release of the suspect

concerned.

3.7 On that basis it seems to me that the purpose of subsection 3A is to permit, provided that the necessary procedures specified in

the subsection are met, the continued detention of the suspect in question notwithstanding the disappearance of the suspicion which

justified the original arrest. I am strengthened in that view by the fact that the continued detention is described in the subsection as

being in relation to the "new" offence "as if that offence was the offence for which the person was originally detained". In other

words, after the procedures specified in subsection 3A are complied with, the suspect is no longer detained in relation to the original

offence but is detained, in substitution therefor, in respect of the new or "other" offence. Such a situation does not arise where

suspicion in respect of the first or original offence bona fide continues.

3.8 Likewise, the language of the subsection, if it had been intended to be mandatory and cover all cases including those where the

original suspicion continued, would, in my view, have been different. The subsection could easily have said that, in any circumstances

where part of the reason for the continued detention of a suspect involved a suspicion of an offence other than the one in respect of

which the suspect was originally arrested, the procedures specified in subsection 3A are to apply. However, that is not the language

used. The language merely permits continued detention if the procedures are followed. It does not require those procedures to be

followed in all cases. The subsection is, in my view, permissive because it is unnecessary in cases where continued detention would,

in any event, have been lawful.

3.9 It was submitted on behalf of Mr. C. that the construction sought to be placed on subsection 3A by the D.P.P. would suggest

that subsection 3A did not really alter the law as it existed, under Howley, prior to the subsection coming into effect. However, for

the reasons which I have sought to analyse, I am not satisfied that such is a correct analysis of the situation. Under Howley, it is

clear that questioning for an offence other than the one in respect of which the suspect was arrested can occur but that the

admissibility of any evidence thereby obtained is dependent on the suspect remaining in lawful custody which is, in turn, dependent

on a bona fide suspicion remaining in being in respect of the offence in respect of which the accused was originally arrested.

Subsection 3A has, therefore, a real effect in changing the law by permitting, in cases where the suspicion which justified the original

arrest has disappeared, the suspect to remain in lawful custody, provided the procedures required by subsection 3A are met, for

further questioning in respect of a new or other offence.

3.10 Likewise, counsel for Mr. C. argued that the construction sought to be placed on subsection 3A by the D.P.P. required reading

something into the subsection which course of action ought not, it was argued, be adopted in respect of a penal statute. However,

again for the reasons which I have sought to analyse, I am not satisfied that it is necessary to read anything into the subsection to

give it the meaning contended for by counsel for the D.P.P. As pointed out, the section is merely permissive rather than mandatory.

The subsection speaks of the custody, in substance, transferring from one which is in relation to the original offence for which the

arrest occurred to one which is in relation to the new or other offence. On that basis I am satisfied that the natural or ordinary

meaning of the subsection is as contended for on behalf of the D.P.P.

3.11 For those reasons I am satisfied that the argument put forward by counsel on behalf of the D.P.P. is correct and that the

Special Criminal Court was incorrect in the approach which it adopted to the lawfulness of the detention of Mr. C.

4. Conclusions

4.1 For those reasons, I am satisfied that the question of law referred to this Court by the D.P.P., under s. 34 of the Criminal

Procedure Act 1967, should be answered as follows:-

"The Special Criminal Court was incorrect in its construction of s. 30(3A) of the Offences Against the State Act, 1939, as

amended by s. 21 of the Criminal Justice (Amendment) Act, 2009."

4.2 I have come to that view most particularly because, for the reasons already analysed, I am satisfied that the Special Criminal

Court was incorrect in concluding that subsection 3A applied and was required to be complied with in cases where the suspicion which

underlay the original arrest of a suspect still bona fide subsisted. This view is, of course, because of the provisions of s. 34 of the

Criminal Procedure Act 1967, without prejudice to the acquittal by the Special Criminal Court of Mr. C.