Failure to record a transfer officer's review of detention grounds does not automatically render continued detention unlawful.

An Chúirt Uachtarach

The Supreme Court

Bill number: 2009/TYDP024

Appeal number: 258/2013

Denham CJ

Hardiman J

Clarke J

Dunne J

Charleton J

Between

The People (at the suit of the Director of Public Prosecutions)

Applicant

and

Colm Roche

Respondent

Judgment of Mr Justice Charleton delivered on Thursday the 23rd day of July 2015.

1. Following on a trial in the Tipperary Circuit Criminal Court before Judge Thomas Teehan and a jury, in November 2011, the

respondent Colm Roche was acquitted on the two counts in an indictment alleging possession of cannabis resin contrary to s.3 of the

Misuse of Drugs Act 1977, as amended, and possession for the purpose of supply contrary to s.15 of that Act. Colm Roche was

presumed at his trial to be innocent and as that presumption of innocence has not been displaced, nothing herein is to be taken as in

any way questioning that.

2. This is an appeal by the Director of Public Prosecutions pursuant to s.34 of the Criminal Procedure Act 1967, as substituted by s.21

of the Criminal Justice Act 2006. It is without prejudice to the acquittal of Colm Roche. That procedure allows the Circuit Criminal

Court to state a question of law for the opinion of the Supreme Court. The result is without prejudice to the acquittal of the accused

Colm Roche.

3. The question is as follows:

Where a person has been arrested and detained at a garda station for an initial period not exceeding 6 hours pursuant to

the provisions of s.4(2) of the Criminal Justice Act 1984, does the fact that no evidence was given that the member in

charge of the station relieving another member in charge (including the original detaining member in charge) considered

whether –

(a) there were reasonable grounds for the original detention, or

(b) there are reasonable grounds for continuing that detention,

of itself render the continued detention of that person unlawful.

Background

4. For the purpose of considering whether an apparent statement by Colm Roche in garda custody should be admissible in evidence,

on the 1st November 2011, the trial judge heard testimony as to the circumstances of his arrest and official detention at Clonmel

garda station. It appears that on the 24th of December 2007, gardaí flagged down a car near the Seán Kelly Sports Centre in Carrick-

on-Suir. There were four people in the car, including Colm Roche. A search was initiated under s.23 of the Misuse of Drugs Act 1977,

as amended. A brown-black rucksack was recovered which was situated on the back seat of the car between where Colm Roche and

another passenger were seated. The occupants of the car were told that they were being brought to the garda station for a further

search. At the scene, the question had been asked of the occupants as to who owned the bag, to which Colm Roche is supposed to

have replied that he did but he didn’t “have a clue what’s in it.” There were also other conversations with the gardaí. The rucksack

contained six bars of cannabis resin. Whatever the strength, or otherwise, of these perhaps contested admissions and of other

conversations prior to the commencement of a formal interview in garda custody, it was whatever was supposedly said by Colm Roche

when detained for questioning that was the focus of a defence application.

5. At the trial, on the defence indicating that there was a challenge to the admissibility of whatever may have been said by Colm

Roche in garda custody, in the absence of the jury, the trial judge enquired as to what was the issue that he would have to try. He

asked: “Is it the admissibility of evidence?” To which counsel for the defence replied: “I’m calling on the State to prove the arrest and

the search and the detention and the memo.”

6. Counsel for the Director of Public Prosecutions then proceeded to call the arresting officer and the member in charge of Clonmel

garda station who had authorised the detention of Colm Roche and his replacement. The custody record, which by regulation shortly

to be referred to, requires the keeping of a note of the reason for arrest and detention of any prisoner in a garda station and a

chronological note relating to checks on the proper treatment in accordance with law of the prisoner, was not produced in evidence

on this issue to the trial judge. Nor was a general question asked as to whether the relevant regulations had been abided by in the

treatment of the prisoner by all those who had dealings with him. As Hardiman J notes in his judgment, the custody record is kept as

a document to be accessed at trials in order to resolve issues as to what may have occurred in custody. Had that record been

produced during the course of the testimony by various gardaí, the trial judge would have had before him evidence as to what had

happened and evidence as to what may have changed or whether the custody period was being properly used by the investigating

gardaí. In the separate judgment of Clarke J the importance of adjudicating on the issues on the appeal in the light of the specific

evidence available is emphasised as the primary factor. In that context, the absence of the custody record from the evidence meant

that even on the appeal this Court could not have regard to it, despite a request that it be produced. In what follows, therefore, it

appears that there was a gap in the evidence as opposed to any question of misconduct by any garda officer dealing with the

detention of this prisoner. Perhaps inadvertence to the custody record was understandable in the light of the lack of specificity as to

the challenge. Piecing together what happened from the pieces of evidence available to the trial judge without the custody record

shows, however, that the concerns raised in the judgment of Clarke J as to inertia, and thus a possible failure to use the time that an

arrested person spends in custody in accordance with the purpose of the statutory power, are not applicable to the facts in this

case.

7. The car in question was stopped at 12:20 hours on the day in question. At 13:00 hours, the prisoner arrived at the garda station

under arrest by Garda Helena Power and the member in charge was Garda Brendan O’Halloran. At 13:04 hours Garda O’Halloran told

Colm Roche of his rights, including the right to consult a solicitor, and no legal assistance was sought. At 13:10 hours, the arresting

officer explained to the member in charge that after searching the car they had found a bag containing suspected cannabis resin and

that, after caution, the prisoner had admitted ownership. Garda O’Halloran granted detention for a period of up to six hours, pursuant

to the relevant regulations. At 13:11 hours, a search of Colm Roche yielded “a small notch of hash”. At 13:12 hours, article 5 of the

Criminal Justice Act, 1984 (Electronic Recording of Interview) Regulations, 1997 (S.I. No. 74 of 1997) was read to the prisoner. At

13:13 hours he was brought to the doctor’s room for the purposes of a further search. At 13:20 hours he was placed in a cell. At

13:52 hours, a garda superintendent gave permission for the prisoner to be fingerprinted and photographed. Garda O’Halloran’s

evidence then continued “I informed the prisoner of the same and at 2pm I informed the member in charge that Colm Roche was

detained pursuant to section 4 of the Criminal Justice Act … [and] that was the end of my dealings.” No questions were asked by the

defence. Garda Helena Power gave evidence of arresting Colm Roche and of bringing him to the station. As to his detention she

stated that Garda O’Halloran “entered all details into the custody record” and that she had a conversation with him outlining her

“reasons for requiring him to be detained.” She stated that “drugs had been found in a rucksack in a car and that Colm Roche had

claimed ownership of this rucksack and bag.” As a result of that conversation she said that “Garda O’Halloran then detained Colm

Roche under section 4 of the Criminal Justice Act.” She was later one of the gardaí who interviewed Colm Roche.

8. At the time when Colm Roche was interviewed, Garda O’Halloran had gone off duty to be replaced as member in charge of Clonmel

garda station by Garda John Downey. He gave evidence before the trial judge that he commenced duty at 14:00 hours as “station

orderly and member in charge … in accordance with section 4 of the Criminal Justice Act 1984.” Having taken up duty, he said, “there

was a prisoner in custody, namely Colm Roche of [address redacted] having been arrested earlier in the day by Garda Power for an

alleged breach of section 15 of the Misuse of Drugs Act.” Whether in giving his testimony Garda Downey was reading from the

custody record or not, it is clear that the details which followed must have come from that source. He testified to making “relevant

entries in relation to” his dealings with the prisoner. These included that at 14:25 hours the prisoner “was taken by Sergeant

Hennebry and detective Garda Quinlan to be photographed and fingerprinted.” He next noted that at 14:47 hours, “the prisoner was

returned to cell No. 4.” He next noted that at 15:15 hours “the prisoner was taken to the interview room with detective Garda

O’Gorman and Garda Power.” He stated that at 15:44 hours he “visited the prisoner in interview room and … no requests or complaints

were made of me.” He recorded that at 16:05 hours the prisoner was returned to the cell and that Garda Power handed him “three

video cassettes, one of which was sealed.” He then said that at 16:26 hours, “the prisoner was released from Garda custody, having

no complaints.” He said that “Mr Roche signed the custody record to this effect.” That concluded the evidence on the issue of

lawfulness of custody.

9. In closing submissions, counsel for the defence submitted that a member in charge must have reasonable grounds for believing that

the continued detention of a person in custody is necessary for the proper investigation of the crime and that there was no evidence

that Garda John Downey had ever applied his mind to that issue.

10. On that question, the trial judge ruled as follows:

With regard to the 2nd application in relation to the detention, Garda O’Halloran was the member in charge when Garda

Power brought in the prisoner, Mr Roche, to the station and it seems to me that the proper procedures were followed as

between them and it seems to me also that Garda O’Halloran as the member in charge in deciding to detain Mr Roche

under section 4 of the Act of 1984 had reasonable grounds for suspecting that his detention was reasonably necessary

for that purpose. That detention took place at 10 past 1. Various other matters then followed and then at 2 o’clock he

was relieved by Garda Downey. Garda Downey gave evidence of having relieved Garda O’Halloran and of the various

matters that took place during the time that he was relieving his colleague. He did not say anything about satisfying

himself of the reasonableness of the continued detention of Mr Roche. I’m quite certain that if he had even a relatively

short conversation with his colleague that he would have satisfied himself because as I said, there were certainly in this

case reasonable grounds for directing the detention of the prisoner. But he did not do so. It seems to me that this is not

a situation which is covered by section 3 of the 1984 Act because that section – section 7.3, I should say, section 7.3

gives a discretion to the Court to admit evidence notwithstanding a breach of regulations made under the section. Now,

but this – what is complained of here by the defence is not a breach of regulations, but a breach of the actual section

and a criminal provision has to be construed strictly and with considerable hesitation then I must accede to the

application in this request – in this regard, and I must rule that the continued detention of Mr Roche past 2 o’clock on the

day was unlawful and I think it flows from that, I think, it [the statement in Garda custody] must be excluded.

11. It was from this ruling that the Director of Public Prosecutions requested the trial judge to state the issue now before the court.

The Criminal Justice Act 1984

12. The Criminal Justice Act 1984 effected two major reforms to the criminal justice investigation system. Prior to that legislation,

where it was suspected that a felony had been committed, a garda could arrest the suspected perpetrator where there were

reasonable grounds to support that suspicion. Felonies were not logically classified, so that the theft of a chocolate bar from a shop

grounded this arrest power whereas a major fraud on a bank did not. The Act of 1984 made offences which could “under or by virtue

of any enactment” be punished “by imprisonment for a term of five years or by a more severe penalty and to attempt to commit any

such offence” the standard for arrest powers. Prior to the Act of 1984, persons arrested were regarded as being at the beginning of

their imprisonment. Therefore, they had to be brought before a court as soon as was reasonably practicable. The time between arrest

and the next proximate sitting of such a court could be used for questioning. That time was, however, variable and unregulated. It

depended in part on when someone was arrested, on a Friday as opposed to a Monday morning, for example, and as to when a court

might be sitting. Apart from judicial decisions as to the admissibility of confession statements, and apart from the Judges’ Rules, there

was nothing to ensure that prisoners in custody were properly treated and questioned in such a way that a statement against

interest might be publicly regarded as reliable. The Act of 1984 made provision for the first time for statutory regulations to be

enacted for the protection of members of An Garda Síochána against unwarranted allegations of brutality, oppression and for the

establishment of a code of conduct as to how prisoners should be correctly and humanely treated. Again for the first time, once there

was a reasonable suspicion to ground an arrest, a person could be arrested for the purpose of questioning. The time limit was placed

on that questioning of six hours but allowing for an extension pursuant to the direction of a Garda superintendent for a further six

hours. Since section 9 of the Criminal Justice Act 2006 was introduced, the period may be extended by a chief superintendent for a

further 12 hours; section 4(3). But, there are limits. Such limits also existed under the Offences against the State Act 1939, as

amended, for arrest under section 30, but the application of that legislation to offences was as random as the categorisation of

crimes as felonies and misdemeanours. Hence, maliciously damaging a window, as well as explosives or firearms offences, enabled

detention under that legislation for a period of twenty four hours, capable of being extended to forty eight hours on the direction of a

chief superintendent, but murder and rape did not.

13. Central to the protections set up by the Act of 1984, is the regulation of the custody of prisoners through subsidiary legislation.

For the purposes of this appeal, the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations)

Regulations, 1987 (S.I. No. 119/1987) applies. The principles upon which those Regulations are based are set out in the Act of 1984.

As originally passed, the Act of 1984 did not allow for the suspension of detention for the purposes of the gardaí making “enquiries or

investigations” but amendments were introduced by the Criminal Justice Act 2011 in that regard. These were not in force at the time

of this arrest and detention and require no further mention.

14. Section 4(2) of the Act of 1984 provides that an arrested person “may be taken to and detained in a Garda Síochána station”.

Detention for the period established in the legislation may be allowed only “if the member of the Garda Síochána in charge of the

station to which the person is taken on arrest has at the time of the person’s arrival at the station reasonable grounds for believing

that his or her detention is necessary for the proper investigation of the offence.”

15. This appeal has centred on the meaning of the duties cast on the member in charge by section 4(4) and section 4(5) of the Act

of 1984 and these provide:

(4) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for

suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith

unless his detention is authorised apart from this Act.

(5) if at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for

believing that his detention is necessary for the proper investigation of the offence to which the detention relates, he

shall, subject to subsection 5A, be released from custody forthwith unless he is charged or caused to be charged with an

offence and is brought before a court as soon as may be in connection with such charge or his detention is authorised

apart from this Act.

16. As the outline of the legislation above will indicate, there may be cases where the member in charge who originally authorises

detention remains in charge of the garda station throughout the whole of that prisoner’s time in custody there. More likely, it is not a

leap of the imagination to suppose that people have entitlements pursuant to their work contracts to change shift, or to take a toilet

or smoke break or meal break. Hence, it seems that at least every eight hours, and probably more frequently, someone will take over

from the original member in charge who has had the relevant conversation with the arresting garda officer and who has authorised the

detention. On behalf of Colm Roche it was argued that this subsection cast upon the member in charge who takes over, a duty to

inform himself or herself as to the circumstances which originally warranted the arrest and as to the circumstances of the

investigation, whereby it continues to be necessary to detain the prisoner for the proper investigation of the offence. That continuing

duty, it was asserted on behalf of Colm Roche, was capable of being discharged episodically, so that an interruption for a meal or

other temporary substitution would not, without more, disturb the legality of the detention. On behalf of the Director of Public

Prosecutions, it was argued that while there was a continuing duty on the member in charge, the subsection did not require evidence

that the garda officer taking over from the member in charge, who originally authorised the detention, should have as elaborate a

knowledge of the circumstances of the original arrest and the progress of the investigation. If, however, something happened during

the course of the detention which meant that the reasonable grounds, whereby the accused was suspected of having committed the

offence, evaporated or whereby there were no longer any reasonable grounds for believing that his detention was necessary for the

proper investigation of the offence, the member in charge would then have to intervene and require the release of the prisoner. An

example of how reasonable grounds for suspecting that the prisoner had committed the offence for which he or she was arrested

might evaporate could, counsel for the Director of Public Prosecutions asserted, involve a credible confession by another person; but

even in that instance that admission need to be verified or otherwise investigated. Even where the prisoner had made a statement

confessing to the crime in question, counsel for the Director of Public Prosecutions asserted that it might not then mean that there

were no longer reasonable grounds for believing that the detention was necessary for the proper investigation of the offence. This is

because corroborative evidence might need to be looked for or diligent police enquiries might appropriately follow-up on details of the

apparent admission.

17. In The People (DPP) v Birney [2007] 1 IR 337, one of the issues before the Court of Criminal Appeal was delay in detaining a

number of prisoners who had apparently been validly arrested on suspicion of the commission of the offence of membership of the

self-styled Irish Republican Army. It was contended that this delay was contrary to law and rendered the subsequent detention of the

prisoners unlawful. In the course of the judgment of the court, Hardiman J emphasised the importance of the member in charge of the

garda station having an independent view as to the reasonableness of the suspicion for arresting the accused and of considering

whether the detention of arrested persons was, on reasonable grounds, necessary for the further investigation of the offence. At

paragraph 58, Hardiman J stated:

This court is of the view that it was clearly the intention of the Oireachtas that the member in charge of a garda station

in circumstances where he is asked to detain a prisoner for the purpose of investigation of an offence pursuant to s. 4

should not merely be a rubber stamp. The role of the member in charge involves both a subjective and objective element

and subjectively he must believe that the applicant’s detention is necessary and objectively must be satisfied that there

are reasonable grounds for his belief. It is clear that the legislature, notwithstanding that s. 4 of the Act of 1984 has to

be construed strictly, did intend that a reasonable period would have to be allowed to the member in charge to consider

his decision following the arrival at the garda station of the arrested person and in the particular circumstances of this

case this court is of the view that there was no departure from the intention of the legislature in the manner in which

each of the applicants was dealt with and detained pursuant to s. 4 of the Act of 1984 and that each of the applicants

was lawfully detained pursuant to s. 4.

18. Once there is a challenge to the legality of a detention on this ground, the trial judge must be satisfied that the member in charge

of the garda station had “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 6 hours from the time of the arrest as a necessary part of the

proper investigation of the offence”; per Hederman J in The People (DPP) v O’Toole (Unreported, Court of Criminal Appeal, 20th of July

1990). The centrality of the member in charge in ensuring the proper course of the custody of an arrested person is also emphasised

by the Regulations of 1987. Article 3(1) declares that in carrying out their functions such members in charge should “act with due

respect for the personal rights of persons in custody and their dignity as human persons” as well as having particular regard to any

who have “a physical or mental disability”. One of the abuses which might occur when a person is arrested is deliberate delay, used

as a tactic to increase worry and stress. Hence, Article 3(2) forbids “unnecessary delay in dealing with persons in custody.” Persons

who are to be members in charge are chosen by the superintendent in charge of a district and they are not to be, “as far as

practicable”, involved in either the arrest or the investigation; Article 4(3).

19. One of the most important duties of the member in charge is to keep the custody record under Article 6 of the Regulations of

1987. This requires the recording “as soon as practicable” of such information as pertains to the person in custody. Under Article 7 it

is required that record is to be kept of the “date, time and place of arrest and the identity of the arresting member”, of the “time of

arrival at the station”, of the “nature of the offence or other matter in respect of which” the arrest took place and of “any relevant

particulars relating to … physical or mental condition” of the prisoner. This is all written in the custody record. That form requires that

the member in charge of authorising the detention should declare and sign a statement as to the particular prisoner declaring that the

member in charge has “reasonable grounds for believing that the detention … is necessary for the proper investigation of the

offence(s) in respect of which he/she has been arrested.” Any extension of detention for a further period has also to be

particularised, recording the officer’s name and rank and that the officer had “reasonable grounds for believing that such further

detention was necessary for the proper investigation of the offence concerned”. The regulations apply to all persons in custody and

not simply to those arrested under the Act of 1984. Article 11 provides that an arrested person should have “reasonable access to a

solicitor of his choice and be enabled to communicate with” that solicitor privately. The detained person is entitled to information “in

ordinary language of the offence or other matter in respect of which” he or she has been arrested; Article 8. Such an arrested person

is also entitled to “receive a visit from a relative, friend or other person with an interest” in his or her welfare provided that it would

be capable of being properly supervised and not “hinder or delay the investigation of crime.” Article 12 provides that interviews are to

be conducted “in a fair and humane manner.” As a matter of practice, the member in charge is to ensure that interviews do not last

beyond the 4 hours as specified in Article 12 and, as the evidence before the trial judge indicates, periodic inspections are carried

out. One such inspection was carried out in this case in compliance with the Regulations. Article 20 declares that persons in custody

should not be subject to “ill-treatment of any kind or the threat of ill-treatment” and that there should be no threats to “the person

himself, his family or any other person connected” with him or her. Article 24 provides for the preservation of custody records for “at

least 12 months” or until the close of criminal or civil proceedings or the final determination of any complaint that might be made.

Provisions as to information are contained in Articles 10 and 16. The proper conduct of personal searches is provided for in Article 17,

including that the person to be searched “understands the reason for the search” and there is a duty on the garda conducting the

search to pursue it with “due respect for the person being searched.” Provisions as to fingerprinting and photographing are contained

in Article 18, and these were clearly followed on the basis of the evidence before the trial judge. The Regulations must be abided by,

though a breach of the Regulations may be excused under some circumstances, as set out in s.7(3) and s.27(4) of the Act of 1984.

There is no provision allowing for a breach of the Act to be excused. Any proposed exclusion of evidence should detention become

unlawful would, as of the present time, be subject to an appropriate analysis in accordance with the decision of the Supreme Court in

The People (DPP) v JC [2015] IESC 31.

Awareness

20. Certain aspects may be highlighted as to the awareness that is required of the member in charge of a garda station to which

arrested prisoners are brought for the purpose of investigation under section 4 of the Act of 1984. Firstly, it is abundantly clear both

under the terms of the legislation itself and on the authorities which have considered the matter, that the member in charge has a

role in permitting the detention only of persons who are reasonably believed to be required to be detained for the proper investigation

of the offence. Section 4(2) makes it clear that no detention should take place, even though a prisoner may have been arrested with

reasonable cause in respect of the commission of an arrestable offence, unless on arrival at the station the member in charge is given

reasonable grounds for believing that the detention is necessary. It is to be noted that the subsection confers that duty on “the

member of the Garda Síochána in charge of the station to which the person is taken on arrest”. The requisite belief of the member in

charge is to be formed “at the time of the person’s arrival at the station” or if the prisoner is actually arrested in the station, then at

the time of “his or her arrest in the station”. That is a serious and solemn duty, which was clearly fulfilled on the basis of the

evidence before the trial judge.

21. Secondly, there is a continuing supervisory duty over the detention which is exercised by the member in charge or any other

member who replaces him as member in charge. That awareness concerns an ongoing obligation to ensure that a person is not

continued to be detained in custody where the grounds for suspecting that the prisoner has committed an offence have dissipated.

There is nothing to suggest on the evidence in this case that there did not remain reason to continue to suspect, and on reasonable

grounds, that Colm Roche had committed the offence for which he was charged. That reasonable suspicion might be said to have

finally dissipated with the ultimate verdict of the jury.

22. There is, thirdly, an obligation on the member in charge to ensure that there is no breach of the Custody Regulations. Nothing was

adverted to either on the state of evidence as presented by the prosecution and there was nothing by way of testimony called by

the defence, which would show that there had been any breach of the Regulations. A trivial breach, such as the recording of a

routine matter might be excused, where however, there is a serious breach related to the human rights of the suspect, that could

well be subject to a different analysis. Therefore, in that regard, it should be noted that nothing happened whereby the detention

was rendered unlawful.

23. The condition, fourthly, for the release of a prisoner where there is no longer any “reasonable grounds for believing that his

detention is necessary for the proper investigation of the offence to which the detention relates” is cast in section 4(5) in conditional

terms. There must be a release but only, as the subsection indicates, “If at any time during the detention of a person pursuant to

this section” the reasonable grounds which underpinned the necessity for the detention of the prisoner for the purpose of the ongoing

investigation are removed. On the state of the evidence before the trial judge, that did not happen. The obligation cast in the section

is clearly conditional upon the removal of the grounds upon which it became necessary to detain the prisoner for the proper

investigation of the offence.

24. Colm Roche was properly detained upon his arrival in Clonmel garda station by Garda Brendan O’Halloran because there were

objective circumstances which allowed him, as member in charge, to believe that his detention was necessary for the proper

investigation of the offence. That decision was the justification for the legality of the detention of Colm Roche. It is correct that the

initial period of 6 hours, as set out in section 4(3) of the Act of 1984, is not a minimum period for which a person may be detained

unless a superintendent or a chief superintendent authorises detention beyond that maximum or any subsequent maximum period.

Detention, instead, may be up to 6 hours. Nor, on the state of the evidence before the trial judge, did the gardaí in Clonmel approach

the section under any erroneous state of mind. Once an interview had concluded, the process of releasing Colm Roche from detention

was initiated about three hours and twenty minutes after his detention had been initially authorised. In the meanwhile, every

significant event had been noted by the replacement member in charge, Garda Downey, in the custody record.

25. Essentially, the question of law raised in this case concerns the fact that no evidence was given that the member in charge of

the station relieving another member in charge, including the original detaining member in charge, considered whether there were

reasonable grounds for the original detention. On the evidence before the trial judge, there was an absence of testimony that Garda

Downey had applied his mind as to whether or not there were reasonable grounds for the original detention. It is difficult to see any

basis upon which Garda Downey, having regard to the provisions of the Act of 1984, could have any role in considering whether the

decision of Garda O’Halloran to detain Colm. Roche was correct or not. If there were reasonable grounds for the detention of Colm

Roche when he was brought to the Garda station and when Garda O’Halloran made the decision to detain, there could be no basis for

Garda Downey to re-consider that decision. That decision, on the evidence, had been made in a responsible way by Garda O’Halloran

and it was arrived at in the manner in which he was required to do it on the arrival of the prisoner at the station. In the absence of

such evidence, the prosecution would have failed to prove that the initial detention was lawful.

26. A second limb of the question posed for the opinion of the Supreme Court concerns whether the fact that no evidence was given

that the member in charge of the station relieving another member in charge, in this case the original detaining member in charge,

considered whether there are reasonable grounds for continuing that detention, of itself render the continued detention of that

person unlawful. It is best to return to what the learned trial judge in the course of his ruling on the matter observed:

Various other matters then followed and then at two o’clock he was relieved by Garda Downey. Garda Downey gave

evidence of having relieved Garda O’Halloran and of the various matters that took place during that time that he was

relieving his colleague. He did not say anything about satisfying himself of the reasonableness of the continued detention

of Mr. Roche. I am quite certain that if you had even a relatively short conversation with his colleague that he would

have satisfied himself because as I said, there were certainly in this case reasonable grounds for directing the detention

of the prisoner. But he did not do so.

27. The trial judge could not have been correct in his conclusion on this point. On the face of the custody record, it was plain that at

13.52, a Garda Superintendent had given permission for the prisoner to be fingerprinted and photographed. Garda Downey himself

testified that at 14.25 hours the prisoner “was taken by Sergeant Henneberry and Detective Garda Quinlan to be photographed and

fingerprinted”. Thereafter, he noted that the prisoner was returned to his cell and subsequently that the prisoner was taken to the

interview room. What is clear at this point is that when Garda Downey took over from Garda O’Halloran as member in charge, there

were no circumstances present which would have called into question the continued detention of the prisoner. On the contrary, it

appeared from the custody record itself that there was a valid reason for continuing the custody of the prisoner; namely, that as part

of the ongoing investigation a Garda Superintendent had given permission for the prisoner to be fingerprinted and photographed. In

those circumstances it is impossible to see how Garda Downey could ever have come to the conclusion that the continued detention

of the prisoner was not necessary at that time. While there was no evidence given of any specific conversation between Garda

O’Halloran and Garda Downey as to “satisfying himself of the reasonableness of the continued detention of Mr. Roche” the custody

record made it abundantly clear that such continued detention was necessary. Garda Downey, at that stage, could hardly have come

to the view that the continued detention of the prisoner was no longer necessary. It is puzzling, as Hardiman J notes in his judgment,

why the prosecution did not ask one of the witnesses to prove the custody record.

28. Furthermore, the decision to detain the prisoner had, on the evidence, been made in a responsible way by Garda O’Halloran, in the

manner in which he was required to do so, on the arrival of the prisoner at the station. To amount to a failure by the prosecution to

prove that the detention was lawful, either that evidence had to be absent, which it was not, or there had to be some piece of

evidence which on the prosecution case, the defence having not called any evidence, a situation had occurred whereby either: (a)

the reasonable grounds justifying the arrest of Colm Roche had disappeared entirely or had become so weakened as to cease to be a

basis for reasonable suspicion at all; or (b) some development had to have occurred whereby there were no longer “reasonable

grounds for believing that his detention [was] necessary for the proper investigation of the offence to which the detention relat[ed]”.

29. The reality of this case is that no event occurred prior to the release of Colm Roche from custody which would have rendered his

detention unlawful. There was nothing on the basis of the prosecution evidence in chief, and there was nothing brought out by cross

examination by counsel for the defence, which demonstrated an absence of reasonable suspicion against Colm Roche in respect of the

offence for which he had been arrested. Further, there was nothing in the prosecution evidence in chief, and there was nothing

brought out by cross examination by counsel for the defence, which demonstrated any change in circumstances, whereby the

decision carefully arrived at by Garda O’Halloran would have given Garda Downey any grounds for ordering the release of the prisoner

on the basis that there were no longer any reasons for Colm Roche’s continued detention for the proper investigation of the offence.

In short, the overall state of the evidence should have been looked at by the trial judge and not just one aspect of the relevant

testimony.

In summary

30. In summary, therefore, Colm Roche was, on the evidence before the trial judge, properly arrested on the basis of a suspicion that

he had committed an offence under s.15 of the Misuse of Drugs Act 1977, as amended. That suspicion did not, at any stage during

the time when he was in garda custody for the purposes of the investigation of the offence, either dissipate or weaken. On arrival in

Clonmel garda station, it was the duty of Garda O’Halloran, as the member in charge, to make enquiries of the arresting officer and to

only authorise the detention there of Colm Roche where he subjectively believed, and where there was objective grounds to suggest,

that the detention of the prisoner was necessary for the proper investigation of the offence for which he was arrested.

31. While there is an ongoing duty cast on the member in charge, and on the Garda replacing him as member in charge, to ensure that

the Custody Regulations are complied with, there is nothing on the evidence in this case to suggest that this duty was cast aside or

ignored. The evidence is quite to the contrary. While there is an ongoing duty to ensure that where the detention of an arrested

person is no longer necessary for the proper investigation of the offence, that they should be released, there is not the slightest

evidence before the trial judge that any such event occurred. The duty to order release either because the grounds for arrest have

dissipated, or because there are no longer reasonable grounds for believing that the detention of the prisoner is necessary for the

proper investigation of the offence, are entirely predicated upon the condition of an event happening which triggers either section.

Hence, both s.4(4) and s.4(5) of the Act of 1984, begin with the words: “If at any time during the detention of a person pursuant to

this section there are no longer …”

32. The trial judge concentrated on one aspect of s.4, as to the absence of evidence, but did not consider the conditional nature of

the requirement for release. That condition in the legislation is entirely explicable and it logically flows from the scheme of detention

whereby there should be an initial enquiry on “arrival at the station” and whereby detention should only be authorised on reasonable

grounds but, once that is done, it requires the occurrence of a further event, whereby the failure to release renders unlawful the

continued detention of a prisoner because of something happening. That could be new information. But, no such thing occurred.

Therefore, the ruling by the trial judge was erroneous.

Questions

33. Both questions should therefore be answered in the negative. Whereas failure to give evidence that the member in charge of the

station relieving another member in charge considered whether there were reasonable grounds for the original detention, or whether

there were reasonable grounds for continuing that detention, was correctly highlighted by the defence, that, of itself, is not enough

to render the continued detention of that person unlawful unless there is, on the evidence, an occurrence which requires the release

of the prisoner already properly held from that detention.