Arrest

 

Cases

Director of Public Prosecutions v Cowman

[1993] 1 IR 335

This is an appeal byway of case stated against the dismissal of certain charges against the defendant by District Court Judge John P. Clifford, sitting at Cork on the 17th June, 1991.
The learned District Court Judge held the arrest of the defendant to be unlawful and it was on this basis that the charges brought against him were dismissed.
The defendant was unrepresented at the hearing. Garda Corcoran gave evidence saying that at about 11.20 p.m. on the 16th June, 1991, he saw the defendant and two other people at South Mall, Cork, and decided to approach them. As he did so, he said that the defendant staggered as if drunk; the garda got a smell of intoxicating liquor from his breath. He asked for the defendant’s name and address, but the
defendant refused to give them, and the garda said that the defendant got very agitated and that he (the garda) formed the opinion that the defendant had drugs taken due to his demeanour and unreasonable behaviour.
The garda then informed the defendant that he was arresting him and detaining him for the purpose of searching him under the Misuse of Drugs Acts, 1977 and 1984; the defendant resisted arrest with some violence and is said to have punched the garda in the process. On being brought to the garda station he was found to be in possession of a dagger-type knife with an eight-inch blade and a wooden handle.
He was charged with a number of different charges: of being guilty of breach of the peace; of being drunk and disorderly; of assault on a garda in the execution of his duty; and of possession in a public place of a knife in circumstances involving an offence under s. 9 of the Firearms and Offensive Weapons Act, 1990.
When asked by the District Court Judge why he had approached the defendant in the first place, the garda replied: “I don’t know, I just had a feeling about him”. The District Court Judge dismissed the charges because he found as a fact that the garda was not entitled to approach the defendant because “he just had a feeling about him”.
In my opinion the decision was not correct in law. If correct it would seem to inhibit the gardaí in their contact with members of the ordinary public to an extent that would make it very difficult for them to carry out their duties in the investigation and prevention of crime. It would seem to envisage that an approach should not be made by a garda to a member of the public unless and until he had already formed an opinion that some grounds existed for suspecting that the person he was approaching was planning to commit some breach of the criminal law, or had already committed some offence. I do not consider that any such restriction is imposed by law on the right of a member of the Garda Siochana to approach members of the public from time to time as he thinks fit for the purpose of speaking to them and having communication with them on an informal basis.
For this reason I propose to allow the present appeal by way of case stated and the matter should be remitted back to the District Court so that the learned District Court Judge may enter continuances and deal with the charges brought against the defendant having regard to the terms of this decision.

DPP v Cullen

[2014] IESC 7
JUDGMENT of Mr. Justice Fennelly delivered the 18th day of February 2014.

1. The question posed by the case stated before the court is whether a general and routine practice of placing drivers in handcuffs when arresting them on suspicion of drunk driving, regardless of the fact that the suspected driver behaves properly peacefully and lawfully, invalidates the subsequent statutory procedure for the taking of breath specimens leading to the acquittal of the driver.

2. The respondent (hereinafter “Mr Cullen”) was charged in the District Court with the offence of driving a motor vehicle in a public place “while there was present in [his] body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in [his] breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.” That charge was laid as being contrary to section 49 (4) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994, as amended by s. 18 of the Road Traffic Act 2006.

3. The Consultative Case Stated comes before this Court pursuant to s. 16 of the Courts of Justice Act 1947. Mr Cullen had presumably been convicted in the District Court: the District Order is not before us. The hearing of his appeal took place before the Dublin Circuit Court (His Honour Judge O’Sulllivan) on 10th February 2009. The hearing, therefore, related to the charge of an offence contrary to section 49(4) and 6(a) of the Road Traffic Act 1961, as inserted by section 10 of the Road Traffic Act 1994.

 

 

The Case Stated
4. The offence is alleged to have been committed in the following circumstances. On 21st September 2007 at approximately 10.30pm, the accused was seen driving a motor van at Littlepace Road, Dublin 15, by Garda Sergeant Sean Moyles, who was on mobile patrol with Sergeant Peter Woods.
5. The learned Circuit Court judge found the following facts:

“Sergeant Sean Moyles gave evidence that he was on covert mobile patrol with Sergeant Peter Woods at Littlepace Road on 21st September 2007, when, at approximately 22:30 pm he observed a motor van registration number 05 MH 523 exiting a shopping centre car park. He followed this vehicle and observed it driving in an erratic fashion. He signalled this vehicle to stop at the entrance on the old Navan Road, Clonee Village, a public place.
He spoke to the driver of the vehicle, and inquired about the manner of his driving. Whilst speaking to the driver he formed the opinion that he had consumed an intoxicant and made a requirement of the driver under the Road Traffic Act 1994, as amended, to provide a breath specimen. The driver complied with the requirement which indicated a fail reading. Thereafter at 22:30 Sergeant Moyles formed the opinion that the accused had consumed an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place and proceeded to arrest the driver pursuant to section 49(8) of the Road Traffic Act 1968 as amended for an offence under section 49(1), (2), (3) or (4) of the Road Traffic Act 1964, [sic, recte 1961] as amended. He informed the driver in ordinary language that he was arresting him for drink driving and proceeded to caution the accused. He identified the driver of the vehicle as Peter Cullen.
The accused was conveyed to Blanchardstown Garda Station, arriving at 22:40 pm where, after an observation period of 20 minutes, he subsequently provided two specimens of his breath following a requirement by Sergeant Peter Woods pursuant to the provisions of s. 13(1)(a) of the Road Traffic Act 1994, as amended. A section 17 statement was introduced into evidence by the prosecution stating that at 23:09 the accused had provided a breath specimen indicating 71 micrograms of alcohol per 100 millilitres of breath.

On cross-examination, Sergeant Moyles stated that Peter Cullen had cooperated with the Gardaí at all times during the interaction with Mr Cullen and the Gardaí prior to and subsequent to his arrest. Sergeant Moyles further accepted that Peter Cullen had not used or threatened force in order to avoid arrest, nor had Sergeant Moyles formed the opinion that there was anything in the conduct of the accused which might lead him to suspect that the accused might resist arrest unless restrained. Counsel for the accused put it to Sergeant Moyles that he had placed the accused in handcuffs immediately following his arrest in circumstances where he himself accepted that the accused neither threatened nor engaged in any conduct consistent with the belief that he would or might possibly resist arrest. Sergeant Moyles stated that it was his policy to place any person arrested for an offence under s. 49 of the Road Traffic Act in handcuffs irrespective of the circumstances as it was his experience that such persons might become abusive and resist arrest either immediately prior to or following communicating the reason for arrest to them.

At the conclusion of the prosecution case, Counsel for the Accused, applied for a direction on the grounds that Sergeant Moyles had no reasonable grounds for believing that the accused would put up any show of resistance or would attempt to evade arrest unless restrained in handcuffs. Thus the placing of such restraint on the accused was both objectively and subjectively unjustified and constituted a conscious, deliberate and unlawful use of force such as to render the accused [sic] detention unlawful. He further submitted that the exclusionary rule obligated the trial Judge in cases of a conscious and deliberate breach of the accused constitutional rights to exclude the admissibility of evidence hereafter obtained save where the prosecution establish some extraordinary and excusing circumstance justifying the actions of the Gardai.”

6. Having noted the submissions of the respective parties the learned judge states:

“I decided that as a matter of fact the prosecution had failed to prove that the placing of the accused in handcuffs was neither lawful, proportional nor justified and consequently that Sergeant Moyles in placing handcuffs on the accused had acted unlawfully.”
7. The learned judge then said that the opinion of this court is sought on the following questions;
1. On the evidence adduced was I entitled to hold that the placing of handcuffs on the accused following arrest was unjustified on the grounds Sergeant Moyles did not believe the particular accused was likely to resist arrest or was likely to attempt to escape from lawful custody unless so restrained?
2. If the answer to the above is in the affirmative was I correct in law in concluding that the placing of the handcuffs on the accused by Sergeant Moyles was a conscious and deliberate breach of the accused’s constitutional rights which rendered the accused’s arrest and detention unlawful and which obligated me to apply the exclusionary rule in respect of any evidence obtained thereafter?

Submissions of the parties
8. Counsel for Mr Cullen submits that first question to be answered is whether the use of force in effecting the accused’s arrest by the application of handcuffs to restrain him was lawful. Counsel relies strongly on the evidence that Mr Cullen had been co-operative in terms of his conduct and demeanour throughout his interaction with the Gardaí, prior to his arrest. Sergeant Moyles had accepted that there was nothing in Mr Cullen’s conduct or demeanour which would give rise to a suspicion that the accused might resist arrest, become uncooperative or pose any difficulty to the Gardaí in the performance of their duties unless restrained in handcuffs. Restraint by the use of handcuffs took place only because the particular Sergeant had adopted a personal policy of restraining every person arrested for a drink driving offence in handcuffs, because, he said, in his experience, such persons might become abusive or resist arrest when informed of the intention to arrest them.
9. It is submitted that the action of restraining by the use of handcuffs constitutes the “use of force” both at common law and for the purposes of the applicable provisions of the Non-Fatal Offences against the Person Act 1997.

10. Counsel relied on a passage from the well-known work by Professor Dermot Walsh on Criminal Procedure (2002, Thomson Round Hall, at 4.55) and on the cases of Lynch v Fitzgerald (1938) IR 382, Leigh v Cole (1853) 6 Cox CC 329, DPP v Daly (High Court, Hamilton P, unreported, March 3rd 1986), DPP v Gaffney [1987] IR 173 and DPP v Delaney (Supreme Court, unreported, 27th November 1997). Reliance was also placed on the decision of this Court in DPP v Forbes [1994] 2 IR 542, a case concerning the lawfulness of an arrest effected in the driveway of a dwelling. That case also refers to the decision of this Court in DPP v McCreesh [1992] 2 I.R. 239.

11. Counsel also submitted that Sergeant Moyles’s policy and practice in employing force and restraint by handcuffs fails to take any account of the accused’s constitutional right to avoid the deprivation of his liberty, save in due course of law, his right to bodily integrity and his right to avoid being the object of unnecessary force, restraint or humiliation in the course of arrest. Counsel referred to the remarks of Hardiman J in the Court of Criminal Appeal in DPP v Davis [2000] WJSC-CCA 2471 concerning the humiliation associated with the use of handcuffs.

12. Counsel for the Director submitted that, on the evidence, the handcuffs were placed on Mr Cullen only after his arrest. Such an alleged act of wrongdoing could not affect the validity of the initial arrest. It is disputed that Sergeant Moyles had a policy of handcuffing all arrested persons. He identified merely a particular class of offenders, namely drink drivers. Handcuffing, it was submitted, is an ancillary part of but not an ingredient of a valid arrest. Mere ancillary conditions applied during detention do not amount to a breach of the rights of an accused person. Reliance is placed on cases such as DPP v Finn [2003] 1 IR 372 at 378. It was submitted, in particular, on the authority of Simpson v The Chief Constable of South Yorkshire Police, 27th February 1991 (English Court of Appeal), that even the use of undue force in effecting an arrest does not make the arrest itself unlawful.
The issues considered
13. Firstly, it is appropriate to identify clearly what was found by the learned judge as recorded in the Case Stated. Two points need to be addressed: firstly, whether the application of handcuffs was an integral part of the arrest or merely something which took place afterwards; secondly, whether the particular Garda officer, in his evidence, stated that he adopted a general and unvarying, in effect a universal practice, of handcuffing all suspects arrested in drink-driving cases.

14. On the first point, the wording of the Case Stated might have been expressed more clearly. The Garda Sergeant is reported as having had a question put to him, namely whether he had placed handcuffs on the accused at the scene “immediately following his arrest.” No explicit answer to this question is recorded. However, it is clear from the entire context that a positive answer must be inferred from the sergeant’s statement that “it was his policy to place any person arrested for an offence under s. 49 in handcuffs irrespective of the circumstances.” The explanation given namely that the officers experience was that “such persons might become abusive……. either immediately prior to or following communicating the reason for arrest to them.” (emphasis added). This answer was given to a question which included the word “immediately.” Moreover, the ensuing remark strongly suggests that the handcuffs, in the view of the Sergeant, need to be applied contemporaneously with the arrest. The timescale is in support of this interpretation. The car was observed at “approximately 22:30;” Sergeant Moyles formed the opinion that the accused had consumed an intoxicant at 22:30; he arrived at Blanchardstown Garda Station at 22:40.

15. Thus, I conclude that, on the facts of this case the Court is dealing with the application of handcuffs as an integral and, in the view of Sergeant Moyles, a necessary part of the arrest process.

16. On the second point, there seems to be no room for doubt but that the Sergeant was of the opinion that the application of handcuffs was necessary “irrespective of the circumstances.” These are the words attributed to him. The Sergeant expressly accepted that Mr Cullen had been fully cooperative both before and during the arrest process and that there was nothing, in the facts of this case, to suggest that he might resist arrest. Consequently, what is involved is a general policy applied by a particular officer of An Garda Síochána, without exception, to every person arrested on suspicion of driving under the influence, even where that person is entirely peaceful, cooperative, unresisting and willing to travel voluntarily to the Garda Station. To be fair, it is not the case and was not suggested that Sergeant Moyles did not genuinely believe that his policy was justified by his own experience.

17. Before turning to the legal consequences flowing from this state of facts, it is well to recall that, as a general proposition, the power of arrest, whether exercised by a police officer or by a citizen may be exercised and may only be exercised with the use of such force as is reasonable in all the circumstances. There are, of course, many circumstances in which members of An Garda Síochána are amply justified in using force in effecting arrest. The law allows a generous measure of judgement to be exercised as to whether force is or is not justified. An error of judgement by an officer in applying force which he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil. This proposition is illustrated by the provisions of s. 19 of the Non-Fatal Offences against the Person Act 1997 provides as follows:

“(1) The use of force by a person in effecting or assisting in a lawful arrest, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence.
(2) “use of force” in subsection (1) is defined and extended by section 20 .

(3) For the purposes of this section the question as to whether the arrest is lawful shall be determined according to the circumstances as the person using the force believed them to be.”

18. The object of that section is, of course, to provide for the circumstances in which an offence is committed. For that purpose, however, it is clear that the lawfulness of an arrest is determined by “the circumstances as the person using the force believed them to be.”
19. Counsel for Mr Cullen cites the following passage from the Criminal Procedure by Professor Dermot Walsh:

“The first question to be considered in an individual case is whether any force is necessary in order to effect or maintain the arrest. Clearly, if the suspect voluntarily submits himself to the custody of the arresting officer and the latter does not suspect that he will put up any show of resistance, any use of force would be unlawful. So, for example, the officer will be acting unlawfully in such circumstances if he throws the suspect to the ground, forces his arms behind his back and handcuffs him. Equally, it would appear that handcuffing as a matter of course, even without any further show of physical force, is unlawful unless the officer genuinely suspects that the suspect will attempt to escape or will otherwise become violent if not handcuffed.”
20. While there is no modern Irish authority concerning the appropriateness of the use of handcuffs, counsel for Mr Cullen has gone back to the 19th century for a citation from a statement of Vaughan Williams J in the course of his summing up to a jury in a case of a civil claim for damages for violent assault committed in the course of an arrest. The case is Leigh v Cole. The jury were directed to the following effect:
“On the one hand, it is clear that the police ought to be fully protected in the discharge of an onerous, arduous, and difficult duty– a duty necessary for the comfort and security of the community. On the other hand it is equally incumbent on everyone engaged in the administration of justice, to take care that the power is necessarily entrusted to the police are not made an instrument of oppression or of tyranny towards even the meanest, most depraved and basest subjects of the realm…”
21. The judge directed the jury, in particular, on the use of handcuffs. He said:
“With respect to handcuffing, the law undoubtedly is that police officers are not only justified, but they are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates ; but what those reasonable measures are must depend entirely on circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that every one conveyed from the police station to the magistrate’s court is to be handcuffed seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets. On the other hand, it is necessary to take proper precautions in conveying a person in custody to be dealt with by the magistrates; and you must say whether, looking at all the circumstances of the case, the defendant used unreasonable precautions in this case, or used unnecessary measures to secure the safe custody of the Plaintiff”.
22. The judge did not, in that passage, discuss the validity of the arrest. As it happens, the principal authority cited on behalf of the Director arose also out of a civil claim for damages against police officers. It is the judgment of the Court of Appeal in England in Simpson v The Chief Constable of South Yorkshire Police, (Times Law Reports 7 March 1991). The case arose out of a claim for damages for assault by persons arrested during the miners’ strike in 1984. The defendants relied in their defence on the conviction of the plaintiff for malicious wounding of a police officer. The plaintiff’s claims were for damages for assault and false imprisonment by reason of unreasonable force used by the officers. They were struck out in the lower courts following the decision of the House of Lords in Hunter v The Chief Constable of West Midlands Police [1982] AC 529. The decision to strike out was reversed in part by the Court Of Appeal, which appears to have made a distinction between the assault claims and the claim in false imprisonment. Counsel for the Director relies on the following passage from the judgment of Fox L.J. in respect of the claim in the latter respect:
“The first of those allegations is in effect an assertion of the use of undue force in effecting an arrest, making the arrest itself unlawful. No authority was cited to us which supports that proposition. Nor would it be a sensible state of the law. The circumstances of many arrests are such that errors of judgment may be made. If the arrest itself is justified in law, such errors in the mode of conducting it, though they may be the basis for other remedies, do not seem to be a good basis for invalidating the arrest itself which is necessary in the public interest. If the arrest is made with due authority, it is not a false imprisonment. Thus Blackstone, Book III, p.127 states that “unlawful or false imprisonment consists in such confinement or detention without sufficient authority”. There was authority for this arrest. For the validity of the arrest what is crucial is the authority. Blackstone himself makes no suggestion that undue force will nullify an arrest.”
23. Oddly, the report of the case does not disclose what order was made. It must be assumed from its terms that the claim in false imprisonment was struck out. The Simpson case is still cited, it is said, in the leading English texts as representing the law. Blackstone’s Criminal Practice 2011 states that “It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest is lawful” (p 1173). Archbold 2010 states that “The use of excessive force does not per se render an arrest unlawful, although it might be the basis for some other remedies” (p 2035).
24. Simpson, at least in its terms, concerns the maintainability of a claim for damages for false imprisonment based on the uses of excessive force during the arrest. It does not address the effect of the use of unnecessary force on the process set in train by the arrest, such as the statutory procedures in cases such as the present. Moreover, it relates to errors of judgement made by police officers in the course of effecting an arrest.

25. I would entirely accept that any individual member of An Garda Síochána is fully entitled to and may well be obliged to apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular case. The decision must be left to the individual Garda dependant on his or her own appreciation of the requirements of the individual case. The nature of the offence, the prevailing circumstances, the personality and character of the individual to be arrested must be taken into account. The law is realistic. It is appreciated that decisions on the necessity for an arrest, the appropriate amount of force and the need for the use of handcuffs are often made under pressure of circumstances of urgency, of danger of flight, and of violence and the threat of violence. Ordinarily, courts are slow to review decisions of Garda officers made in the wide range of situations which they confront in the course of their duty.

26. It may be, therefore, that the use of handcuffs is justified, in the particular circumstances, in order to prevent the arrested person from fleeing or otherwise causing disturbance. In the present case, the decision as to whether to apply handcuffs was pre-ordained. It did not depend on any evaluation of the circumstances. It left no room for the case of the entirely peaceful and cooperative suspect.

27. There is, in fact, a substantial body of case law, much of it cited on behalf of Mr Cullen, dealing with the validity of arrest in cases concerning the enforcement of the drink-driving laws. The behaviour of the suspect in several of these cases went beyond lack of co-operation and consisted in flight from and evasion of the Gardaí. Since these cases involved summary offences, they came before this Court by way of case stated.

28. Such a case was Director of Public Prosecutions v Gaffney [1987] IR 173, where the suspect had driven a car through a Garda checkpoint, was followed into his driveway, refused to stop and refused permission for the Gardaí to enter. In the view of Walsh J, at page 180, referring to the decision of the House of Lords in Morris v Beardmore [1981] A.C. 446, “without permission to be present in the house the policeman was a trespasser.” He concluded, at page 18, that:

“…… the entry made by the Garda Síochána in the present case was one not authorised by law and was in breach of the constitutional guarantee of the inviolability of the dwelling of every citizen contained in Article 40, of the Constitution.”
The important point is that the learned judge concluded that “the arrest effected on foot of that unlawful and unconstitutional entry was illegal.”

29. Henchy J summarised the issue, at page 181, as being whether the Gardaí were trespassers, when they entered the dwelling. He added: “For if they were, the arrest was unlawful and in consequence the prosecution must fail.”
30. In Director of Public Prosecutions v McCreesh [1992] 2 IR 239, there was a charge of refusal to give a specimen of blood or urine contrary to s. 13(3) of the Road Traffic Act, 1978. The Gardaí had pursued the suspects in a high-speed chase ultimately to the driveway of the suspect’s home. They told him they were arresting him. He said that they were trespassing on private property and asked them to leave. He was arrested and taken to the Garda Station, where he was asked to provide a specimen of blood or urine to a doctor, but refused. Hederman J, who delivered a judgment of the majority of this Court, summarised the issues at page 250 as follows:

“An offence under s. 13, sub-s. 3 cannot……be committed unless (a) the driving or attempted driving of the vehicle took place in a public place, and (b) the driver was validly arrested, and (c) he had been brought (in custody) to a garda station. On the facts of this case, therefore, the narrow point to be decided is whether there was a valid arrest.”
31. The Court considered the validity of the arrest in a context where, unlike in DPP v Gaffney, the arrest took place, not in the suspect’s dwelling, but in its curtilage. Hederman J concluded at page 254:
“As the learned Circuit Court Judge has found that the defendant did not give leave or licence to the garda to enter the driveway of his premises, the garda was, on these authorities, undoubtedly a trespasser thereon and no other conclusion is open. Any doubt in this respect which might have arisen was put at rest when the defendant informed the garda that he was a trespasser and should leave the premises. Applying to the facts in this case the principle stated in the passages cited from the speeches in Morris v. Beardmore [1981] A.C. 446, which had the approval of Henchy J. in Director of Public Prosecutions v. Gaffney [1987] I.R. 173, in my opinion the arrest of the defendant was not a lawful arrest. If it had been intended by the Oireachtas to confer on a member of the Garda the power to make inroads on the property rights of citizens which are recognised and protected by the common law, and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such power in section 49.”
32. There was much discussion in these two cases about whether the Gardaí were, in fact and in law, trespassers. The cases were distinguished, on the facts, in Director of Public Prosecutions v Forbes [1994] 2 IR 542, where O’Flaherty J considered that the Gardaí had been acting on an implied authority to enter private property. They were distinguished once more, also by O’Flaherty J in DPP v Delaney (Supreme Court, unreported, 27th November 1997). But that case concerned the arrest of persons charge with offences such as breach of the peace, assault and producing an article capable of producing injury. The fact that the arrests were effected in what was claimed to be the dwelling of one or more of the accused was irrelevant. As O’Flaherty J put it:
“ Whether an arrest is illegal or not can only be of relevance where proof of a valid arrest is an essential ingredient to ground the charge, such as under s. 49 of the Road Traffic Act, 1961……………”
33. This last dictum states the principle perhaps too succinctly. The arrest is a necessary ingredient in the sense that the authority to demand that a suspect provide samples such as blood, urine or, as in this case, breath is dependent on the procedure having been commenced by a lawful arrest.
34. The case of Director of Public Prosecutions v Finn [2003] 272 concerned a case stated in the context of another prosecution for a driving offence, the offence of refusal to provide a sample of breath as required under s. 13(1)(a) of the Road Traffic Act 1994. The suspect had been detained and kept under observation in the Garda Station for a period of twenty minutes prior to being required to provide the sample. This Court held that, in the absence of any evidence justifying that detention, his detention ceased to be lawful. Murray J, with whom McGuinness, Geoghegan and Fennelly JJ agreed said:

“The obligation on the defendant to submit to the test in question was imposed by statute even though it may inculpate him in the commission of an offence. Given that the specified period of detention leading up to the taking of that test was not, on the facts, justified in law, I am of the view that the second question should be answered in the affirmative.”
The effect of this was that the evidence of refusal to provide the sample was held to be inadmissible.
35. The cases of Gaffney and McCreesh establish that an arrest may be invalid if, in the absence of lawful authority or consent of the owner, it is carried out on private property. The case of Finn is somewhat different: a detention, originally lawful became unlawful because the suspect was held in detention without justification. That case was distinguished in Director of Public Prosecutions v Fox [2008] IESC 45. The first two cases are, to some extent, historic. Section 7 of the Road Traffic Act 2010 permits an arresting Garda to “enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling but not the dwelling) where the person is or where the member, with reasonable cause, suspects him or her to be.” These cases remain relevant, nonetheless, for the principle that an unlawful arrest invalidates the subsequent procedures under which the Gardaí are empowered to require the suspect to provide a sample of his breath.

36. It is, of course, neither necessary nor appropriate, for the purposes of this judgment, to reach any final conclusion on the state of English law. It is worthy of note, nonetheless, that the decision of the House of Lords in Morris v Beardmore, cited above, was an influential in the formulation of the reasoning of this Court in the Gaffney and McCreesh cases. The headnote to Morris v Beardmore reads:

“.. since in the absence of express provision it was presumed that Parliament did not intend to authorise what would otherwise be tortious conduct, a constable must be acting lawfully towards a person whom he required to provide a specimen for a breath test ………
Lord Diplock said, at page 456:
“… in my opinion, in order to constitute a valid requirement the constable who makes it must be acting lawfully towards the person whom you requires to undertake a breath test at the moment when he makes the requirement. He is not acting lawfully he is then committing the tort of trespass on that person’s property for [the section] gives him no authority to do so.”
37. Thus, at least at one time, it was considered that the validity of the breath-testing procedures carried out under the Road Traffic depended on a valid and lawful arrest. This position in English law has subsequently undergone significant change both by statute and judicial interpretation. (see, for example Fox v Chief Constable of Gwent [1986] A.C. 281.)
38. The present case is, of course, does not involve trespass. To that extent, it is different from Gaffney and McCreesh. However, I believe that the principle established in those cases is relevant. The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of which the present would appear to be one, when it is quite unnecessary to do so.

39. To paraphrase the language of Hardiman J in People (at the suit of the Director of Public Prosecutions v Davis (Court of Criminal Appeal, unreported 23rd October 2000), the“the public depiction of any person, but particularly in unconvicted prisoner, wearing the double restraints which are now commonly used in the prison service is a depiction of him in a position of humiliation and indignity.” The offence with which Mr Cullen was charged is necessarily committed in a public place. The arrest will normally take place in public.

40. In my opinion, an arrest carried out in what one hopes are the unique circumstances outlined in the case stated is unlawful. I would answer the first question in the Case Stated in the affirmative. I would answer the second question by stating that the arrest was unlawful. That is sufficient to determine the case. It is unnecessary to refer to breach of constitutional rights or the exclusionary rule.

Director of Public Prosecutions v Forbes

[1993] ILRM 817 O’Flaherty J
This is a case stated to the Supreme Court pursuant to s. 16 of the Courts of Justice Act 1947 by his Honour Judge Deery. The question submitted for the determination of the court is:

Whether in a prosecution under s. 49 of the Road Traffic Act 1961, as amended, where a garda arrests a defendant under s. 49(6) of the said Act on private property, which is not owned or occupied by the defendant, the said arrest is unlawful and invalidates any further evidence obtained on foot of the said arrest.

Background facts
The case sets out the background facts and I can summarise them as follows. The defendant, William Forbes, was convicted at Ballymahon District Court on 4 October 1991 in respect of a complaint brought by the Director of Public Prosecutions that on 18 March 1991 at Creevaghbeg, Ballymahon, Co. Longford, he drove a motor car in a public place while there was present in his body a quantity of alcohol which exceeded a concentration of 100 milligrams of alcohol per 100 millilitres of blood, contrary to s. 49 of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic (Amendment) Act 1978.

Thereafter, he brought an appeal which came before the learned Circuit Court judge on 18 March 1992. Evidence was given by Garda John D. Brennan that on 18 March he was on mobile traffic patrol duty accompanied by Garda Lee and Garda Drury. At about 1.00 am he approached the bridge at Ballymahon coming from the Athlone direction. He saw a motor car parked at the bridge facing towards Mullingar and, as he approached, the car suddenly took off. It turned sharp left, up a side road. He followed the car and about 60 yards up the side road it turned right into the driveway of a private house and stopped.

Garda Brennan left the patrol car and ran to the driver’s door of the motor car. The defendant scrambled across a woman passenger who was in the front passenger seat and got out the front passenger door. Garda Brennan ran around the back of the car and caught the defendant as he ran for the road. He asked him where he was running to and the defendant shrugged his shoulders and said  ‘nowhere’. Garda Brennan asked him did he live there and the defendant said no. He was unable to explain why he drove into the driveway of the private house.

Garda Brennan gave evidence that he got a smell of intoxicating liquor off the defendant’s breath. He formed the opinion that the defendant was incapable of driving due to the consumption of intoxicating liquor. He placed his hand on the defendant’s shoulder and told him that he was arresting him under s. 49 of the Road Traffic Acts 1961–1978 for drunken driving. The time of the arrest was 1.05 am.

Thereafter, the defendant was taken to Mullingar Garda Station and a blood sample was taken by a medical practitioner. In due course the Medical Bureau of Road Safety certified that defendant’s blood sample had a concentration of 200 milligrams of alcohol per 100 millilitres of blood. Nothing turns on this aspect of the case.

Submission in Circuit Court
At the conclusion of the prosecution case counsel on behalf of the defendant submitted that the defendant was arrested on private property and should not have been arrested there but in a public place and reference was made to the cases of Director of Public Prosecutions v Corrigan [1987] ILRM 575 and Director of Public Prosecutions v McCreesh [1992] 2 IR 239 and, in particular, the judgment of McCarthy J in the latter case.

The learned Circuit Court judge was inclined to the opinion that the defendant had no case to meet on the charge on the ground that he had been arrested on private property and therefore the arrest was unlawful.

Director of Public Prosecutions v McCreesh
All the relevant authorities were reviewed in McCreesh so it is unnecessary to do so again. Hederman J concluded that an offence cannot be committed unless:

(a) the driving or attempted driving of the vehicle took place in a public place;
(b) the driver was validly arrested, and
(c) he had been brought (in custody) to a garda station.
In that case the learned Circuit Court judge had found that the defendant did not give leave or licence to the garda to enter the driveway of his dwelling house and the garda, therefore, was a trespasser thereon. In fact, the defendant in that case had informed the garda that he was a trespasser and should leave the premises. In those circumstances, the court reached the conclusion that the arrest of the defendant on the defendant’s own premises was not a lawful arrest and, therefore, an essential ingredient to establish the guilt of the defendant was missing. Hederman J added at p. 254:

If it had been intended by the Oireachtas to confer on a member of the garda  the power to make inroads on the property rights of citizens which are recognised and protected by the common law, and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such power in s. 49.

Griffin J, who agreed with the judgment of Hederman J, observed further at p. 244:

Under the law as at present in force that power of arrest cannot be exercised if a driver succeeds in reaching his own premises, be they his private residence or his business premises, before the gardaí catch up with him. There must have been very many instances in which this has occurred, and the enforcement of the law has been frustrated. Although any change in the existing law is a matter exclusively for the Oireachtas, instances such as in the present case would appear clearly to warrant legislative intervention to prevent repetition thereof.

It will be clear from these quotations that the majority view in McCreesh was confined entirely to the prohibition of arrest of a person on that person’s own premises, be they a dwelling house or otherwise.

However, in the course of his judgment McCarthy J (concurring, of course, in the result) said this at p. 255:

It is clear, on the facts here, that at the time of the purported arrest, [the garda] was a trespasser; it may be that the Oireachtas may, by legislation, authorise an arrest without warrant in such circumstances; it has not done so. The relevant sections of the Act of 1978, including that substituting a new s. 49 in the Act of 1961, clearly anticipate an offence committed in a public place and, possibly, also an arrest in such place. Whatever that case may be, if there is to be an arrest carried out in a private place by a garda who is a trespasser, such a mode of arrest requires express statutory provision in order to justify it at law. There is no such provision; accordingly, the purported arrest here was unlawful.

Insofar as this passage in the judgment of McCarthy J suggests that it might be necessary for the arrest, as well as the driving, to take place in a public place, I am unable to share that view which, of course, was clearly an obiter statement and in any event was put forward only as a possibility.

Conclusion
S. 49(6) of the Act provides that a member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under the section. The offence, of course, must be committed in a public place but provided the garda does not breach any constitutional or legal right of another, he is entitled to go on other property to effect an arrest. Here there is no question that the gardaí were trespassers. It must be regarded as axiomatic that any householder gives an implied authority to a member of the garda to come onto the forecourt of his premises to see to the enforcement of the law or prevent a breach thereof. It will be clear that this case is not concerned with any question of entering a dwelling-house and, therefore, there is not in the instant case any question of any form of implied waiver of any constitutional right. Further, like any implied authority, it is an implication which the evidence may, on occasion, rebut. Clearly, in this case, the gardaí were acting in the execution of their duties. They saw a car which was driven suspiciously, to say the least; it went up a side road and into the driveway of a private dwelling. Could it be said what danger the driver of such a car might have posed for the occupants of that dwellinghouse? In the circumstances of this case, the gardaí were clearly acting in the execution of their duties. This must be the acid test because they cannot be regarded as acting in the execution of their duties if they breach anyone’s constitutional or legal rights (unless in an extreme situation, such as in the defence of life or limb). For them to have ignored the defendant’s conduct on this occasion would have bordered on a dereliction of duty on their part. To suggest that they would be perfectly entitled to arrest the defendant if he was on the public road but not if he was on a third party’s property would constitute, as was suggested in the course of the debate before us, a massive absurdity.

I would, accordingly, answer the question of law referred to the court in the negative.

 

The People v. Walsh

O’Higgins C.J. [1980] IR 294
S.C.

O’Higgins C.J.
17th January 1980

The issue in this appeal is whether evidence of the fingerprints of the appellant taken at Store Street garda station ought to have been admitted in evidence at his trial. It is submitted that such should not have been admitted because, it is contended, the appellant was in unlawful custody at the time. Alternatively, it is contended that even if the appellant were in lawful custody such evidence should not have been admitted because an appropriate caution had not been given in respect of the taking of fingerprints. The first ground of objection was not raised at the trial. Ordinarily for that reason it would not be entertained in this Court. However, as this is a criminal case and as the appellant’s liberty is involved, the Court has permitted the objection to be argued. Before dealing with these two grounds of appeal, it is necessary to refer to the circumstances under which the fingerprints were taken and to such parts of the evidence at the appellant’s trial as appear relevant.
On the 29th August, 1974, four men, one of whom was armed with a gun, entered the house of the Cohen brothers at No. 3 Kenilworth Square, Rathgar. The Cohens were antique dealers, and the object of the raid was robbery. When one of the Cohens offered resistance he was felled to the ground by a blow on the head administered with an object called a “pillar” which was on a table in the house. Afterwards a fingerprint was discovered on this pillar. The investigating Gardai at Rathmines had reason to believe that this fingerprint was made by the appellant and, for that reason, they suspected him of involvement in the crime and wished to interview him.
On the 23rd January, 1975, at 9.30 o’clock at night, Detective Sergeant McCarrick of Store Street garda station and other Gardai entered a publichouse in Thomas Street where the appellant was drinking with a number of people. The sergeant identified himself to the appellant and informed him that he was taking him to Store Street garda station. The appellant submitted to the arrest and asked no question; he was handcuffed and removed to Store Street. Sergeant McCarrick’s reason for the arrest was because the appellant was suspected of being involved in the crime of the 29th August which was a felony, and because the appellant was wanted for that reason by the Rathmines Gardai. The basis for the suspicion was the sergeant’s understanding that there was fingerprint evidence connecting the appellant with the crime.
Sergeant McCarrick stated that he did not tell the appellant of the reason for the arrest at the time because there were so many other people in the vicinity but that, nevertheless, if the appellant had asked for the reason he (the sergeant) would have told him. Shortly after arrival at Store Street, the sergeant told the appellant of the reason for the arrest and gave him a legal caution. It does not appear that the appellant said anything in reply.
Some short time later, within an hour of arrival at Store Street, Sergeant McCarrick told the appellant that he proposed taking his fingerprints and asked if the appellant had any objection. The appellant did not object and the fingerprints were taken. This constitutes the disputed evidence in this appeal. After the fingerprints had been taken, the appellant’s solicitor arrived and, after consultation with him, the appellant signed a form acknowledging that the fingerprints had been taken with his consent. At this stage no charge had been brought against the appellant, who was held in custody overnight.
At some stage on the following day (Friday the 24th January) an application for a conditional order of habeas corpus in respect of the appellant’s detention was made and the President of the High Court duly made a conditional order. The return was fixed for Monday, the 27th January, at 11 o’clock. On Saturday, the 25th January, the appellant was charged in the District Court with the offence committed on the 29th August, 1974, and the District Justice made an order committing the appellant in custody to Mountjoy Prison pending the hearing of the charge. On Monday the 27th January, the cause for the appellant’s detention, certified by way of return to the conditional order, was based on the order of the District Court made on the 25th January. The High Court (Finlay P.) held this return to be insufficient. The judge ordered the immediate release of the appellant but under the provisions of the Habeas Corpus Act, 1781, gave liberty for the rearrest of the appellant and that he be charged with the offence. Having been so arrested and charged, the appellant was later convicted of the offence before Mr. Justice Costello and a jury.
The only evidence against the appellant at his trial consisted of the fingerprints taken in Store Street garda station on the night of the 23rd January, 1975. These were identified as being identical with the print on the object used to fell one of the Cohen brothers. Therefore, if this appeal succeeds, the conviction of the appellant cannot stand and he must be freed.
The first ground of appeal is based on the assertion that the appellant was being illegally detained at Store Street garda station at the time when the fingerprints were taken. The submission is that the evidence, as a consequence of this illegal detention, was obtained as a result of a deliberate and conscious violation of the appellant’s constitutional rights and that, therefore, in the circumstances of this case the evidence should have been excluded.

I wish to say at once that this submission should succeed if the imprisonment or detention in Store Street cannot be justified in law. I have had the benefit of reading the judgment of Mr. Justice Walsh in which he reviews the authorities on this important aspect of constitutional law. I am in complete agreement with the manner in which he states the law. However, in my view this is not the crucial question. In my view the crucial question indeed, the only question is whether the arrest of the appellant and his detention immediately thereafter on the night of the 23rd January was, or was not, lawful.
As I understand the argument put forward on behalf of the appellant, it is to the following effect. Since no reason was given for the arrest and since the appellant was held in custody without being charged until the 25th January, during which period his fingerprints were taken, the object and purpose of the arrest and subsequent imprisonment was to obtain evidence against him. If such were the object and purpose of the arrest and detention, it could have no justification in law. It has been stated many times in our Courts that there is no such procedure permitted by the law as “holding for questioning” or detaining on any pretext, except pursuant to a court order or for the purpose of charging and bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of citizens. So serious a breach of constitutional rights would such an occurrence entail, however, that its happening should not lightly be assumed.
The allegation that this interference occurred was not made at the trial. There was a mild suggestion made in the cross-examination of Sergeant McCarrick that the purpose of the arrest was to enable the appellant to be interrogated. This was rejected by the sergeant who stated that he was aware that there was fingerprint evidence connecting the appellant with the crime. The matter was not pursued any further and the evidence remained that the appellant had been arrested on suspicion of a felony because the sergeant was aware that there was evidence connecting the appellant with such a crime. However, even if the suggestion was not pursued or tested at the trial, I would look at the uncontested facts and evidence to see if such a conclusion as is contended for here should, or could, be reached.
Two matters are clearly established on the evidence. The first is that the appellant was not charged and brought before the District Court until the morning of the 25th January, 1975. This fact has already been held by the President of the High Court to have invalidated the imprisonment on the 24th January. I quite agree with this view. However, the question is whether this fact has a retroactive effect so as to invalidate the detention or custody on the night of the 23rd January. The second matter which requires examination is the fact that the appellant was not given any reason for his arrest. Does this fact of itself invalidate and render unlawful his imprisonment in Store Street on the night of the 23rd January and, of course, thereafter? I propose now to consider both these matters.
As to the arrest, I have no doubt on the evidence that Sergeant McCarrick arrested the appellant on suspicion of his being involved in a felony. It is true that he referred to the fact that the Gardai at Rathmines were anxious to interview the appellant, but this has to be taken in conjunction with his awareness of the existence of evidence connecting the appellant with the crime and with his own assertion that he made the arrest on suspicion of a felony. Such an arrest by a police officer is justified at common law and it is so justified whether or not a felony has in fact been committed: Hadley v.Perks. 7 In my view the fact that the sergeant may have been acting on suspicion held by other Gardai or on an understanding from others as to what the evidence was would not impair his authority to act. In Creagh v. Gamble 8 a knowledge that a warrant had been issued for the apprehension of a person justified his arrest by an officer without a warrant. In that case Palles C.B. said at p. 472 of the report:
“. . . I find in varied forms a recurrence of the principle which forms its fundamental basis, that a person against whom a reasonable suspicion of felony exists shall be brought to justice. The peace officer is not only entitled, but bound, to arrest him.”
However, such an arrest and subsequent detention is only justified at common law if it is exercised for the purpose for which the right exists, which is the bringing of an arrested person to justice before a court. If it appears that the arresting Gardai have no evidence on which to charge the person arrested, or cannot justify the suspicion on which he was arrested, he must be released. He cannot be detained while investigations are carried out. Reasonable expedition is required but more than this cannot be demanded. Regard must be had to the circumstances and to the time of the arrest. If a person is arrested late at night, it scarcely seems unreasonable if he is held overnight and charged before a court the following morning. The important thing is that his detention after arrest must be only for the purpose of bringing him before a District Justice or a peace commissioner with reasonable expedition so that a court can decide whether he is to remain in custody or to be released on bail. In this case the appellant was arrested at 9.30 at night on a Thursday. Courts were sitting normally on the following day.
Had the appellant been charged before the District Court on the following morning (the 24th January) instead of on the 25th January, in my opinion no question of his release on habeas corpus could have arisen, nor could it have been suggested that his imprisonment overnight was otherwise than lawful. Does the fact that this was not done invalidate what otherwise was lawful? This, it seems to me, was one of the problems considered and decided in Dunne v. Clinton. 9 For almost fifty years that decision has been rightly regarded in our Courts as the leading authority on arrest at common law. It came before two judges of the High Court, Sullivan P. (the then President and later Chief Justice) and Hanna J. as a Circuit Court appeal under the procedure then in operation. The premises of the local electricity company at Listowel in the county of Kerry had been broken into and burgled. The plaintiffs, two brothers, had gone to the garda station voluntarily to answer questions. Their interrogation by the Chief Superintendent ended at 4.30 in the morning. They were then told that they would be detained but were given no reason. Neither was any charge preferred against them throughout the following two days. In fact they were not charged and brought before a court until 9 o’clock on the evening of the following day, and then only after a letter of complaint had been sent by their solicitor. The charges against them were dismissed and they claimed, against the Chief Superintendent of the Garda Siochana for Kerry, damages for false imprisonment.
The case was availed of by the Gardai to obtain a definite ruling from the High Court as to whether the practice of detaining suspects pending investigations (which was stated to be normal procedure) was justified on the basis that it was something short of imprisonment. This question was very readily disposed of by both judges in the negative. At p.369 of the report Sullivan P. said:
“It is, in my opinion, hopeless to contend that the detention of the plaintiff did not amount in law to imprisonment; it was a total restraint of his liberty, imposed on him by the action of the guards against his will. That it was the duty of the defendant, as the officer responsible for such detention, to bring the plaintiff before a Peace Commissioner as soon as he reasonably could do so seems to me to be incontestable: see Wright v. Court 10 ; R. (Rea) v. Davison. 11 That he did not do so is clear on the admitted facts, and he is, therefore, liable to the plaintiff in damages. Such liability in damages is in respect only of the detention during the period that elapsed between the time when the defendant could reasonably have brought the plaintiff before a Peace Commissioner and the time when he in fact did so. The arrest of the plaintiff and his detention until he could be brought before a Peace Commissioner was lawful.”
At p.372 of the report Hanna J. said:
“The first question that arises is whether this detention is something different from arrest or imprisonment. In law there can be no half-way house between the liberty of the subject, unfettered by restraint, and an arrest. If a person under suspicion voluntarily agrees to go to a police station to be questioned, his liberty is not interfered with, as he can change his mind at any time. If, having been examined, he is asked, and voluntarily agrees, to remain in the barracks until some investigation is made, he is still a free subject, and can leave at any time. But a practice has grown up of ‘detention,’ as distinct from arrest. It is, in effect, keeping a suspect in custody, perhaps under as comfortable circumstances as the barracks will permit, without making any definite charge against him, and with the intimation in some form of words or gesture that he is under restraint, and will not be allowed to leave. As, in my opinion, there could be no such thing as notional liberty, this socalled detention amounts to arrest, and the suspect has in law been arrested and in custody during the period of his detention. The expression ‘detention’ has no justification in law in this connection, and the use of it has in a sense helped to nurture the idea that it is something different from arrest, and that it relieves the guards from the obligation to have the question of the liberty of the suspected person determined by a Peace Commissioner or the Court. If the word ‘detention’ were deleted from the police vocabulary and the word ‘arrest’ substituted there would be a clearer understanding as to the obligations upon the guards. If it is necessary or advisable for the investigation of crime that there should be some intermediate period conforming to the present practice, it must be authorised by the Legislature. It is a deprivation of the liberty of the subject, and it is fundamental that that cannot occur in cases such as this, save by the order of a Peace Commissioner or a Court.”
At p.373 of the report Hanna J. added:
“Accordingly the Dunnes were, in my opinion, arrested and in custody from 4.30 on the Tuesday morning. They were lawfully under arrest, because the guards had reasonable grounds for suspecting them to have committed the felony.”
He went on to state that it was the duty of the guards to bring the person arrested with reasonable expedition before a peace commissioner. Hanna J. then considered what is a reasonable time to allow after arrest for such to be done and, at p.375, he said:
“No hard and fast rule can be laid down to cover every case. It must depend on many circumstances, such as the time and place of the arrest, the number of the accused, whether a Peace Commissioner is easily available, and such other matters as may be relevant.”
Both judges held that the plaintiffs were entitled to damages but only in respect of the period which elapsed after they ought to have been brought before a court. In the view of both judges the imprisonment up to that moment was justified by the common-law arrest. Involved in that decision was a decision that the subsequent illegality had no retrospective effect and did not operate to render unlawful anything which hitherto had been lawful. The decision of the High Court in Dunne v. Clinton 9 was subsequently affirmed on appeal by the Supreme Court (Kennedy C.J., FitzGibbon and Murnaghan JJ.) on the 12th February, 1931, but the decision of the Supreme Court was not reported.
It seems to me that Dunne v. Clinton 9 is very similar to the present case. As in Dunne v. Clinton, 9 there was here a bona fide arrest at common law but also undue delay in charging the prisoner before a court. As in Dunne v.Clinton 9 this undue delay ought not of itself to invalidate the entire period of custody but only so much of that period as was covered by such delay.
As I have indicated, I can see no basis on the evidence and in the circumstances of the arrest for regarding the overnight detention of the appellant as being unreasonable. In my view, therefore, the appellant’s detention on the night of the 23rd January, 1975, was not rendered unlawful merely because he had not been then charged with an offence. It follows that I do not regard the subsequent failure to charge him before a court with reasonable expedition as rendering unlawful his period of detention and imprisonment immediately following his arrest on the night of the 23rd January. I may add that I would regard it as illogical and contrary to reason to contend that something done by a person in accordance with the law could be rendered unlawful merely because that person subsequently acted contrary to his obligation under the law.
The second matter which requires examination is the fact that Sergeant McCarrick did not inform the appellant of the reason for his arrest at the time of the arrest. Does this fact of itself render unlawful the arrest and the subsequent detention of the appellant in Store Street garda station on the night of the 23rd January? This question must be considered in the light of the evidence that Sergeant McCarrick did not state a reason because of the large number of people present in the public-house, that the appellant did not ask for a reason but acquiesced and submitted to the arrest, and that shortly after the arrest the sergeant informed the appellant at Store Street why he had been arrested. It is further to be noted that no suggestion was made at the trial that the arrest or subsequent detention in Store Street on the night of the 23rd January was on this account irregular or unlawful.
Mr. Justice Walsh has kindly referred me to In Re O’Laighleis 12 which, although not cited in argument, seems to have considerable relevance to the question now being considered. In that case there were proceedings in the nature of habeas corpus in which a large number of issues were involved. The applicant had been detained under the provisions of s. 30 of the Offences Against the State Act, 1939, and, prior to the expiration of the permitted period of detention under that section, he was handed over pursuant to a warrant issued by the Minister for Justice under s. 4 of the amending Act of 1940. When the applicant was handed over at the Bridewell garda station to the detective officer acting under the warrant, the warrant was not produced and the applicant was not told the reason. Later, however, a copy of the warrant was furnished to the applicant at the Military Detention Camp at the Curragh to which he was conveyed. One of the matters raised was whether the applicant’s arrest, in the form of the change of custody, was unlawful because of the failure to produce the warrant or to state a reason at the time. Maguire C.J. gave the judgment of the former Supreme Court; in relation to this aspect of the case, he said at p. 128 of the report:
“The applicant’s next ground of appeal is that his arrest at the Bridewell Gárda Station under the Minister’s warrant was unlawful because he was not told the reason for it. The arrest was made without a warrant being produced. Sect. 4, sub-s. 2, authorises such arrest provided the Minister’s warrant has been issued. Sect. 4, sub-s. 4, however, requires that a copy of a warrant shall be furnished to a person detained under the section as soon as may be after he arrives at the prescribed place of detention. Counsel for the respondent submitted that it was sufficient to comply with the requirement of sub-s. 4 and that this requirement was of itself an indication that no more was necessary for a lawful arrest under s. 4. We accept it as settled law that in the case of an arrest without the production of a warrant the arrest will not be lawful unless the person being arrested is told why he is being arrested or unless he otherwise knows: see Christie v. Leachinsky. 13 The reason for the rule is not far to seek. Arrest must be for a lawful purpose; and since no one is obliged to submit to an unlawful arrest the citizen has a right before acquiescing in his arrest to know why he is being arrested. The Court sees nothing in s. 4 of the Act of 1940 which manifests an intention on the part of the Oireachtas to modify this wholesome rule of law; and accordingly the Court is of opinion that a person arrested under a Minister’s warrant must be told that such a warrant exists and that he is being arrested and will be detained under it.”
If there were any substance in the suggestion that failure to inform a person at the time of his arrest of the reason for it invalidated any subsequent detention, one would have thought that the Court’s judgment in the O’Laighleis Case 12 would have gone on to declare the detention in that case to be unlawful. This, however, was not so. At p. 129 of the report Maguire C.J. said:
“But can this avail the applicant? Firstly, he has not established that he did not know why he was being arrested at the Bridewell Gárda Station . . . Moreover, an invalidity in the arrest would not render the subsequent detention under the Minister’s warrant unlawful though it might give the applicant other rights in respect of the period from the arrest until the warrant was produced and shown to him.”
It seems to me that in this excerpt from the judgment in the O’Laighleis Case 12 (certainly in the concluding portion thereof) the onus was placed on the person arrested to establish that he did not know why he was arrested, and that a clear line of distinction was drawn between the actual arrest and the ensuing imprisonment or detention. If such a line of distinction can be drawn where the arrest was made pursuant to a warrant, as in the O’Laighleis Case 12 , I can see no reason why it should not also be drawn where the arrest was made pursuant to the common-law. An arrest is the actual or notional seizure of a person for the purpose of imprisonment. An arrest under warrant is an arrest authorised under a power given by statute. The warrant represents the authority to arrest and to imprison. In the case of a commonlaw arrest, a suspicion of felony which is reasonably held is the authority which justifies the arrest and the ensuing imprisonment for the purpose which I have already mentioned. In either case a fault in the arrest, on the reasoning in the Court’s judgment in the O’Laighleis Case, 12 ought not to operate so as to render the subsequent imprisonment (if otherwise authorised) unlawful.
In the passage from the judgment in the O’Laighleis Case 12 which I have just read, Maguire C.J. referred to Christie v. Leachinsky 13 and in particular to a portion of the judgment of Viscount Simon. That case had peculiar features. Leachinsky was given as the reason for his arrest an offence which did not justify an arrest without a warrant. It was not the true reason for his arrest. The true reason was suspicion of felony which, of course, would have justified the arrest but which, for reasons of their own, the arresting police officers did not state. As a defence to an action for false imprisonment brought by Leachinsky, the arresting officers put forward the true reason. In his judgment, Viscount Simon (who was the presiding Law Lord) acknowledged and paid tribute to Lord du Parcq, who was the junior, for the investigation and research he had carried out after submissions in the case had concluded. He acknowledged that what he was about to say was owed”to the erudition of my noble and learned friend, Lord du Parcq, who made a careful investigation of the recorded law after the arguments were concluded.” Viscount Simon then laid down (at p.587) five propositions in the part of his judgment to which Maguire C.J. referred. He there said:
“The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to establish the following propositions.
(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
(4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the above general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.”
Immediately after that passage Viscount Simon summed up the effect and meaning of what he had just said as follows:
“No one, I think, would approve a situation in which when the person arrested asked for the reason, the policeman replied ‘that has nothing to do with you: come along with me.’ Such a situation may be tolerated under other systems of law, as for instance in the time of lettres de cachet in the eighteenth century in France, or in more recent days when the Gestapo swept people off to confinement under an over-riding authority which the executive in this country happily does not in ordinary times possess. This would be quite contrary to our conceptions of individual liberty.”
This seems to me to indicate that the mischief which Viscount Simon considered must be avoided was the deliberate concealment of the cause of arrest either by refusing to give the information when asked or by giving a false reason, which had occurred in the case with which he was dealing. Lord du Parcq in his judgment, which had the express support not only of Viscount Simon but also of Lord Thankerton and Lord Simonds, put the obligation (at p.600) of the arresting officer to inform the person arrested of the reason as being one to be discharged “at or within a reasonable time, of the arrest.”
Having regard to this examination which I have attempted of the judgment delivered by Maguire C.J. in the O’Laighleis Case 12 and of what was said in Christie v. Leachinsky 13 , I conclude that there is nothing in either of those cases which would suggest that Sergeant McCarrick’s failure at the moment of the arrest to inform the appellant of the reason for it rendered the immediate succeeding imprisonment in Store Street garda station unlawful. The appellant’s right to be informed was not questioned. It simply was not exercised by him. Since the appellant immediately acquiesced in the arrest no question concerning the authority for the arrest arose. In any event shortly afterwards the appellant was informed in Store Street garda station of the reason for the arrest in words which must have conveyed to him that he was suspected of being involved in the crime committed on the 29th August, 1974. In addition, at no stage at his trial was it suggested on behalf of the appellant that his arrest was unlawful because he was ignorant or kept in ignorance of the reason.
Therefore, I have come to the conclusion that the failure to inform the appellant at the moment of his arrest of the reason for it did not render unlawful his detention in Store Street garda station on the night of the 23rd January, 1975. In my view the appellant was in lawful custody at the time he was asked to give his fingerprints. Accordingly, no question of a breach of his constitutional rights arises.
I now turn to consider the alternative submission which is to the effect that the fingerprint evidence ought to have been excluded because the appellant was neither cautioned nor informed that he was not obliged to submit to having his fingerprints taken. It will be recalled that at Store Street the appellant had been informed of the reason for his arrest and had been cautioned. Some short time afterwards the appellant was told by the sergeant that he, the sergeant, proposed taking the appellant’s fingerprints and he was asked if he had any objection. Not only did the appellant not state any objection but he later acknowledged in writing that the prints had been taken with his consent. There was ample evidence to indicate that the fingerprinting was done with the consent of the appellant. However, the submission is that this is not enough. It is submitted that a warning or caution was required so that the appellant would know that he was not obliged to submit or consent and that he was entitled to refuse. I do not accept this submission.
The purpose of a caution in relation to a confession or statement is to ensure that what is said or written is said or written voluntarily. An involuntary confession or statement, given out of fear or induced by hope, is tainted evidence of a quality not acceptable in our Courts. It is not so with a fingerprint. A fingerprint does not change. Whether the person concerned submits voluntarily to having his print taken or whether he fiercely objects and resists makes no difference to the probative value of the evidence obtained. His fingerprint remains the same and indicates always the same association or disassociation with the crime under investigation, irrespective of the circumstances under which it is obtained. Therefore, I cannot see why the administering of a caution, or anything resembling a caution, should be a necessary preliminary to the admissibility of fingerprint evidence. I think the correct view of the law in this respect was taken by the High Court in The People (Attorney General) v. McGrath 6 : see the judgments of Davitt P. at p. 70 and of McLoughlin J. at p.76 of the report of that case. What a court ought to be concerned about is whether the evidence sought to be admitted was or was not taken by illegal means. If illegal means were used (assuming these to fall short of a breach of constitutional rights), the trial judge would have to consider whether in the particular circumstances the public interest was best served by the admission or the rejection of such evidence: see the judgment of Kingsmill Moore J. at p.160 of the report of The People (Attorney General) v.O’Brien. 2
In my view, no question of illegality arose in this case. Not only was the appellant given an opportunity to object but later, having seen his solicitor, he acknowledged in writing that what was done was done with his consent. In my view the evidence as to his fingerprints was properly admitted by the trial judge in the circumstances. As indicated, I do not think a caution was necessary. Accordingly, I would reject this submission.
In the result, in my view, the appellant’s appeal against conviction ought to be dismissed.
One other matter requires consideration. The appellant also appeals on the basis that the sentence of five years penal servitude imposed on him was excessive. The trial judge contemplated imposing a sentence of ten years penal servitude but was informed by junior counsel for the Director of Public Prosecutions that the maximum sentence for the offence was five years penal servitude. On being so informed, Mr. Justice Costello imposed what he had been informed was the maximum sentence, i.e., a sentence of five years penal servitude. There seems to have been a serious misunderstanding in this
respect. The offence of which the appellant had been convicted was the offence of assault together with other persons with intent to rob contrary to s. 23, sub-s. 1 (a), of the Larceny Act, 1916. The maximum sentence for this offence was penal servitude for life. Had he not been misinformed as to the statutory maximum prison penalty under the statute, Mr. Justice Costello would have sentenced the appellant to ten years penal servitude, which ought to have been the sentence being considered on this appeal. I confine myself to saying that I would not interfere with the sentence actually imposed.
In my view, this appeal ought to be dismissed on all grounds.

Walsh J.
The appellant was convicted in the Central Criminal Court of the offence of assault with intent to rob contrary to s. 23, sub-s. 1 (a), of the Larceny Act, 1916. He pleaded not guilty to this charge and was tried on the 22nd and 23rd February, 1978. He was found guilty by the jury. On the 23rd February, 1978, the presiding judge, Mr. Justice Costello, sentenced the appellant to five years penal servitude to run from that date. He has appealed to this Court against that conviction.
The appeal is taken on the grounds that evidence of the appellant’s fingerprints was wrongly admitted in evidence because the fingerprints were taken by the Garda at a time when, it is submitted, the appellant was in unlawful custody in the Garda station and that this unlawful custody amounted to a deliberate and conscious violation of the constitutional rights of the appellant. A study of the transcript makes it clear that there was no evidence to incriminate the appellant save the fingerprints. Therefore, if the fingerprint evidence had not been admitted, there was no sustainable case against the appellant.
The charge related to a crime committed on the 29th August, 1974, when Mr. Louis Cohen and Mr. Israel Cohen were both assaulted by three men who came to the door of their house. The men were armed with a gun. One of the intruders hit Mr. Israel Cohen on the head with a marble object. The object was a small marble column which stood on a table in the house. After the intruders had departed it was found to be still there, but in a broken and bloodstained state. Fingerprint experts from the Garda Siochana subsequently examined it in the house when they arrived and they found fingerprints on it. Subsequent events provided ample evidence on which a jury could find that a fingerprint of the appellant was found upon this piece of marble by the Garda technical experts. This was established by using the usual points of comparison between a fingerprint of the appellant which was obtained from the appellant and comparing it with that which was found on the piece of marble.
The circumstances in which the appellant’s fingerprints were obtained give rise to the present appeal. Briefly stated, he consented to giving his fingerprints to the Guards in the garda station at a time when he was being held in custody by the Garda Siochana. The ground upon which this appeal is taken is that the evidence was not admissible because, it is submitted, the custody was an illegal custody and, therefore, amounted to false imprisonment. False imprisonment is a breach of the constitutional right to be at liberty save when detained in accordance with the law.
At approximately 9.30 p.m. on the evening of the 23rd January, 1975, Sergeant McCarrick saw the appellant in a public-house in Thomas Street, Dublin. The sergeant identified himself and took the appellant into custody. He told him “I am taking you to Store Street” and then brought him handcuffed to Store Street garda station. At the time of the encounter the appellant said nothing when informed of the intention of the sergeant. The sergeant said in evidence that he took the appellant into custody because he was aware that the Gardai at Rathmines wished to interview the appellant in relation to an assault and an attempted burglary, neither of which is a felony. The sergeant did not give the appellant any reason why he was taking the appellant into custody, and said that the appellant did not ask him for any reason. The sergeant’s reason was that the Gardai were anxious to interview the appellant about the assault at the home of Mr. Cohen. The sergeant was also aware at the time that the fingerprints found on the piece of marble corresponded with fingerprints which were known to be the fingerprints of the appellant.
When the appellant and the members of the Garda reached Store Street garda station, the sergeant told the appellant that he was making inquiries in relation to a case of burglary (which is a felony) and assault that had occurred at the home of Mr. Cohen some months previously, but the sergeant did not inform the appellant that he had reasonable grounds for suspecting the appellant and that he was being held in custody on foot of such belief. The sergeant went on to tell the appellant formally that he was not obliged to say anything unless he wished to do so but that anything he did say would be used in evidence. The appellant was then asked if he had any objection to giving his fingerprints, but no particular formal caution was administered in reference to that. The appellant was not told that he was entitled to refuse to give them but he was asked if he had any objection to his fingerprints being taken. He expressed no objection and his fingerprints were taken by the sergeant. The fingerprints were taken at approximately 15-20 minutes after the formal caution had been given. After a visit from his solicitor the appellant signed a form which, in effect, acknowledged that the fingerprints taken were his own. For the purpose of this case it may be assumed, and I think the evidence is sufficient to satisfy a court on the point, that the fingerprints were given voluntarily by the appellant to the Garda Siochana.
At no stage was the appellant charged with any offence and it does not appear from the evidence that it was the intention to charge him with any offence at the time he was taken into custody. In effect, the object of the arrest appears to have been to bring him to the garda station for the purpose of endeavouring to see what evidence could be obtained from him and, in particular, to obtain his fingerprints. The appellant was still in custody on the following day (24th January) and he still had not been charged with any offence.
An application on his behalf was made to the President of the High Court under the Constitution on the 24th January for what is popularly called a conditional order of habeas corpus. An order was made by the President to the effect that the Garda Siochana should produce before the High Court on Monday, the 27th January, the body of the appellant and should certify in writing the grounds of his detention. On the day following the order of the High Court (the 25th January) the appellant was brought before the District Court and charged with the offence of assault with intent to rob. When the matter came again before the High Court on the 27th January, the certificate in writing showing the cause of the detention exhibited the order of the District Court made on foot of the charge of the 25th January to the effect that the District Justice directed the appellant to be detained in Mountjoy Prison by the governor of the prison until the 31st January, 1975. The High Court held that the return to its order was insufficient to justify the detention of the appellant and ordered him to be released. At the same time, the court made an order pursuant to s. 5 of the (Irish) Habeas Corpus Act, 1781, giving the Commissioner, or other proper officer, of the Garda Siochana liberty to arrest and charge the appellant in connection with the alleged offence. It is not necessary for the purpose of this judgment to go into the reasons why the order directing the release of the appellant was made by the High Court. It was probably on the ground that the detention which had been the subject of the conditional order was illegal and could not be made legal simply by the appellant being charged before the District Court and that, therefore, the process had to be started afresh and had to be done properly.
As the matter with which this Court is now concerned relates only to the time at which the fingerprints were taken and to the quality of the custody in which the appellant was held at that stage, it is unnecessary to explore the question of whether and to what extent a false imprisonment can be turned into a valid imprisonment by the intervention of a charge. What is beyond doubt is that at the time the appellant had his fingerprints taken he had not been charged, and there is no evidence that there was any intention to charge him and to bring him before a court as soon as reasonably possible.
In Dunne v. Clinton 9 the two judges (Sullivan P. and Hanna J.) agreed that the detention in that case was unlawful because of the failure of the police officers to take the person they had in custody before a peace commissioner or a court as soon as reasonably possible. In that particular case it was decided that there was an unlawful detention between the time the man could reasonably have been brought before a peace commissioner or a court and the time he was actually brought before a peace commissioner. It was conceded by the plaintiffs’ counsel that the original arrest was lawful in view of the evidence that the defendant had reasonable grounds for believing that the plaintiffs had committed the felony of larceny. The report does not state whether the plaintiffs had been so told or that the circumstances were such that the plaintiffs must have known of the alleged offence for which they were in custody. A citizen is entitled to know on what charge or on what reasonable suspicion of what crime he is held in custody. In giving the judgment of the former Supreme Court of Justice in In re O’Laighleis 12 Maguire C.J. said at p.129 of the report:
“We accept it as settled law that in the case of an arrest without the production of a warrant the arrest will not be lawful unless the person being arrested is told why he is being arrested or unless he otherwise knows: see Christie v. Leachinsky. 13 The reason for the rule is not far to seek. Arrest must be for a lawful purpose; and since no one is obliged to submit to an unlawful arrest the citizen has a right before acquiescing in his arrest to know why he is being arrested.”
The purpose of an arrest is to bring the person before a court as soon as possible and that had not been the position in Dunne v. Clinton. 9 In that case it had been contended on behalf of the police that they were entitled to detain suspects for a reasonable time during which they might have the opportunity to make inquiries and to investigate their connection with a particular crime under examination, and that such detention did not amount to arrest or imprisonment and was lawful. In that case Hanna J. dealt with that suggestion very clearly. He totally rejected the suggestion that there was any form of lawful detention short of lawful arrest. At p. 372 of the report he said:
“In law there can be no half-way house between the liberty of the subject, unfettered by restraint, and an arrest. If a person under suspicion voluntarily agrees to go to a police station to be questioned, his liberty is not interfered with, as he can change his mind at any time. If, having been examined, he is asked, and voluntarily agrees, to remain in the barracks until some investigation is made, he is still a free subject, and can leave at any time. But a practice has grown up of ‘detention,’ as distinct from arrest. It is, in effect, keeping a suspect in custody . . . without making any definite charge against him, and with the intimation in some form of words or gesture that he is under restraint, and will not be allowed to leave. As, in my opinion there could be no such thing as notional liberty, this so-called detention amounts to arrest, and the suspect has in law been arrested and in custody during the period of his detention.”
At the same page he went on to say:
“The expression ‘detention’ has no justification in law in this connection, and the use of it has in a sense helped to nurture the idea that it is something different from arrest, and that it relieves the guards from the obligation to have the question of the liberty of the suspected person determined by a Peace Commissioner or the Court. If the word ‘detention’ were deleted from the police vocabulary and the word ‘arrest’ substituted there would be a clearer understanding as to the obligations upon the guards.”
In Dunne v. Clinton 9 Hanna J. referred to The Attorney-General v. Cox 14 (unreported) in which he had sat in the Court of Criminal Appeal on the 9th April, 1929, with the then Chief Justice and the then President of the High Court. The accused was charged with murder. The admissibility of certain statements made to the Guards depended on whether they were made at a time when he was in custody and under arrest. The facts were similar to those in Dunne v. Clinton. 9 Some men, including that accused, had gone voluntarily to the police and had made statements. They had left but the accused was detained without, however, being charged or formally arrested. There was a conflict as to whether the statement was made before or after he was detained. The then Chief Justice in giving his judgment said:
“The police contend that this man was only in detention, not under arrest . . . There is no doubt that at some time on the night of the 22nd-23rd of December he was not a free man, and was detained, as the police say . . . The Court cannot accept this distinction between detainer where a person is not a free agent, and arrest or imprisonment as it is commonly understood in law.”
The whole point of the decision in Dunne v. Clinton 9 is that there is no intermediate position between liberty and detention. The essential point is whether a person has been deprived of his liberty to go where he pleases. In this connection it is interesting to note a decision of the Court of Appeal in England given almost fifty years later. In R. v. Lemsatef 15 the appellant was driving a van through the Mersey Tunnel; he was stopped by police and customs officers for the purpose of searching the van pursuant to the Misuse of Drugs Act, 1971. He was detained but was not told why he was being detained. The detention took place at 12.40 a.m. and he was taken to the Custom House “to help with inquiries being made by customs officers into drug importation offences.” His interrogation by customs officers began at 3.30 a.m. He asked to see his solicitor but was refused a solicitor. The interrogation was resumed at 3.00 p.m. after a discontinuance and ended with the appellant making an oral admission. Later he made a written statement which amounted to a confession. The trial judge in exercising his discretion decided to admit in evidence the oral and the written admissions and overruled the submission that they should not be admitted because, contrary to the English Judges’ Rules, he had not been allowed to consult his solicitor before the admission and the statement. In the course of giving the judgment of the court Lawton L.J. (at p. 816) enunciated the following principle:
“This Court makes two comments about those inept answers. First, it must be clearly understood that neither customs officers nor police officers have any right to detain somebody for the purposes of getting them to help with their inquiries. Police officers either arrest for an offence or they do not arrest at all. Customs either detain for an offence or they do not detain at all. The law is clear. Neither arrest nor detention can properly be carried out without the accused person being told the offence for which he is being arrested. There is no such offence as ‘helping police with their inquiries.’ This is a phrase which has crept into use, largely because of the need for the press to be careful about how they report what has happened when somebody has been arrested but not charged. If the idea is getting around amongst either Customs and Excise officers or police officers that they can arrest or detain people, as the case may be, for this particular purpose, the sooner they disabuse themselves of that idea, the better.”
I am quite satisfied that our law does not permit a person to be deprived of his liberty for the purpose of providing evidence or for the purpose of being interrogated. A person may only be arrested for the purpose of being charged and brought before a court as soon as is reasonably possible. A lawful arrest, whether under a warrant or not, is simply a process to compel the attendance before a court of the person accused of an offence. Neither the arrest nor the charge confer jurisdiction and cannot amount to a complaint if it is not made before a court, a peace commissioner or the District Court clerk: see the judgment of Kingsmill Moore J. in The Attorney General (McDonnell) v. Higgins 16
The person arrested must be told why he is being arrested and upon what charge and, when those formalities have been completed, he must be brought before a court or a judicial officer as soon as possible. On the authority of Dunne v. Clinton 9 which has been followed by the Court of Criminal Appeal in The People v. O’Loughlin 17 (and, in my view, correctly followed), to fail to comply with the latter condition is sufficient to make unlawful an arrest which may originally have been lawful.
In The People (Attorney General) v. O’Brien 2 this Court decided that evidence obtained in deliberate conscious breach of the constitutional rights of an accused person was absolutely inadmissible, save in the excusable circumstances outlined in that decision. The Court took the view that the defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. In my judgment (with which Ó Dálaigh C.J. agreed) I expressed the view (at p. 170) that:”The courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril.” In the course of his judgment (with which Lavery and Budd JJ. agreed) Kingsmill Moore J. said at p. 162 of the report: “I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded, and I agree that there may be certain ‘extraordinary excusing circumstances’ which may warrant its admission. I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge.” In my view the learned judge, in dealing with this matter, was leaving open the question of what could amount to an extraordinary excusing circumstance and was not prepared to enumerate such circumstances by anticipation. He took the view that, as the circumstances of cases may vary so widely, it would be a matter for the discretion of the trial judge to decide whether or not the circumstances pleaded in excuse of the violation of the constitutional right in question were such as to amount to “extraordinary excusing circumstances.”Whatever view the trial judge would take on this could itself be subject to review on appeal.
In the present case there are no extraordinary excusing circumstances nor, indeed, were any alleged. The onus is upon the prosecution to establish that there are such extraordinary excusing circumstances where it has been established that there has been a breach of a constitutional right. If a man is consciously and deliberately kept in custody in a garda station or anywhere else without a charge being preferred against him and without being brought before a court as soon as reasonably possible, he is in unlawful custody and there has been a deliberate and conscious violation of his constitutional right to be at liberty. That this was the position in the present case is abundantly clear from the evidence given by the police officer at the trial. The fact that the officer or officers concerned may not have been conscious that what they were doing was illegal or that, even if they did know it was illegal, they did not think it was a breach of the Constitution does not affect the matter. They were conscious of the actual circumstances which existed.
I fully agree with the view expressed by the learned Chief Justice giving the judgment of the Court of Criminal Appeal in The People v. Madden. 3 In that case a man had been kept in a police station after the expiration of the lawful period of detention. At p.347 of the report the court said:
“What was done was, prima facie, done deliberately and, if so, consciously by the Garda officer concerned. Had there been any question of oversight or inadvertence with regard to the defendant’s constitutional rights, this would have become apparent at the trial. In fact no excusing circumstance was even suggested, apart from the assertion by Sergeant Brennan that the defendant was engaged in making a statement when the period of lawful detention expired . . . The court of trial appears to have sought an element of wilfulness ormala fides in the conduct of the Garda officer and, not finding such, to have concluded that the deprivation of constitutional rights was not deliberate and conscious. In the view of this Court to adopt that approach is to misunderstand the decision in O’Brien’s Case 2 and, accordingly, to err in law. What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of the due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right. This lack of regard for, and failure to vindicate, the defendant’s constitutional right to liberty may not have induced or brought about the making of this statement, but it was the dominating circumstance surrounding its making. In the view of this Court this fact cannot be ignored.”
I agree with this interpretation of O’Brien’s Case. 2 I am of opinion that the observations made there in reference to the circumstances under which a voluntary statement was taken are equally applicable to the present case where fingerprints were voluntarily given. On this latter point it is also desirable to draw attention to the decision of the Court of Criminal Appeal in The People v. O’Loughlin 17 and to the following passage (at p. 91) in the judgment of that court delivered by the learned Chief Justice, with which I fully agree:
“Apart from the special situation specified in the Offences Against the State Act, 1939, there is no procedure under our law whereby a person may be held in a Garda station without charge. In particular, our law does not contemplate or permit the holding of a person for questioning. It makes no difference whether the offence for which he is so held is an entirely separate matter to the one with which he is finally charged. ‘Holding for questioning’ and ‘taking into custody’ and ‘detaining’ are merely different ways of describing the act of depriving a man of his liberty. To do such without lawful authority is an open defiance of Article 40, s. 4, sub-s. 1, of the Constitution. . . In this case the Gardai chose not to charge the applicant when they ought to have done so. Instead, in effect they held him further for questioning for many hours. This could not have been due to either inadvertence or oversight. It was done by experienced Garda officers who must have had a special knowledge of citizens’ rights in such circumstances. It could only have been the result of a deliberate decision by these officers who were aware of the applicant’s rights. These rights were disregarded and swept aside because of the concern to continue the investigation into cattle-stealing. This was not such a special circumstance (as, indeed, the trial judge held) as could excuse the violation of constitutional rights which took place. While it was not sought or contemplated, the result of the applicant’s prolonged detention was that at a late hour on that day the applicant, after much questioning and a caution, made the written statement. Had he been accorded his constitutional rights, he would not have been in the Garda station at that time.”
In dealing with the view the trial judge had expressed that he had a discretion to overlook deliberate and conscious violation of constitutional rights if, in his view, it served the public interest in the circumstances, the Chief Justice said at p. 92 of the report:
“This Court cannot agree with that view. There are no circumstances in this case which can excuse what took place. It would ill serve respect for the Constitution and the laws if this Court, by allowing evidence so obtained, were to indicate to citizens generally that the obligation on the State to safeguard and vindicate constitutional rights could be dispensed with or eased in the circumstances of a criminal investigation.”
It is only fair to the trial judge in the present case to point out that the transcript of the evidence and of the submissions at the trial indicate that the main objection to the admission of the fingerprint evidence appears to have been based on somewhat different grounds, and that the question of the violation of the constitutional rights was not expressly mentioned. In brief, the arguments appear to have been based on the submission that a person should be cautioned before being asked to give his fingerprints on the grounds that at common law, and where there is no statutory provision to the contrary, a person is under no obligation to incriminate himself, and that before being asked to do something which may incriminate him he should be warned that he is under no such obligation. The appellant was requested to give his fingerprints and, while he did agree to it, he was not warned that he was under no obligation to do so though he subsequently signed a document acknowledging the fingerprints as being his after he had given them. However, he was not formally told that he was under no obligation to give them. The Court has not been referred to any statutory provision which enables fingerprints to be taken without the accused’s consent, and undoubtedly in the present case they were incriminating. In requesting the appellant to give the fingerprints, the Guards were quite clearly conscious of the fact that they would probably incriminate him since the Guards already had on record fingerprints which were recorded as being his; that had been the basis of the original apprehension of the appellant. Because of the views I have taken on the other aspects of this case I do not find it necessary to offer any view on the law on this matter, and I leave it open for future consideration.
For the reasons I have already indicated, in my view the fingerprints in this case, even on the assumption that they were in every respect voluntarily given, were given at a time when the appellant was being held in unlawful custody in violation of his constitutional right to be at liberty and were obtained as a direct result of that violation of constitutional rights. For that reason I am of opinion that the learned trial judge was in error in admitting this evidence. As this was the only incriminating evidence which could sustain the appellant’s conviction, the result is that there is no evidence on which the conviction can be sustained. In my view, the appeal should be allowed and the conviction should be quashed.

Kenny J.
I have read the judgment of the Chief Justice and I agree with it.

D.P.P. v. Gaffney

Finlay C.J.; Walsh J. [1987] IR 173
1 I.R.

 

Finlay C.J.
23rd February 1987

I agree with the judgment which is about to be delivered by Walsh J.

Walsh J.
This is an appeal taken against the decision of MacKenzie J. in the High Court upon a consultative case stated by District Justice O’Sullivan. While the case purported to have been stated pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as carried forward and extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, which in fact deals with appeals by way of case stated, it was obvious that what was intended was a consultative case stated pursuant to s. 52 of the Act of 1961. The case stated is itself described as a “consultative case stated”. The leave of the High Court to carry the appeal to this Court was granted by the High Court judge, as it is required by s. 52, sub-s. 2 of the Act of 1961.
The questions of law involved arose during the hearing of a prosecution brought against the defendant by the complainant pursuant to ss. 49, 53, 54, 106 and 109 of the Road Traffic Act, 1961, as amended. The case was heard in the Dublin Metropolitan District Court on the 27th March, 1984, and the case stated was dated the 28th November, 1985. The case stated summarised the evidence given for the prosecution in the following words:”
“A garda check point was operated on Rathgar Road, Dublin during the early hours of the 28th February, 1984. At approximately 3.30 a.m. on that morning a garda on patrol at the check point signalled the driver of an approaching car to stop. The driver, who was subsequently identified as the defendant failed to stop as requested and drove his car at such a speed and in such a manner that the garda had to jump out of the way to avoid being struck. The defendant’s car was immediately pursued by a Garda Gerard Walsh on an official garda motor cycle. The pursuit continued for approximately 45 minutes and three other garda vehicles were also involved. During the course of the hearing Garda Walsh gave evidence that the defendant’s car which was driven at high speed throughout would often swerve from side to side on the road. Garda Walsh also said in evidence that as the defendant entered into Bushy Park Road, Rathgar, Dublin he observed that car strike a parked car and continue without stopping at the scene of the accident. Another garda witness who was the driver of a patrol car described how during the course of the pursuit the defendant suddenly stopped his vehicle, and then reversed and rammed the pursuing patrol car. The patrol car was immobilised while the defendant moved off again at high speed. Other gardai said in evidence that they had been forced to run for safety as the defendant’s vehicle had seemed to go out of control.
The defendant was eventually pursued to a house located at 2 Hazelbrook Drive at Terenure, Dublin 6. As the defendant was about to enter the house a garda called on him to stop but he was met with a refusal. Some of the gardai then went to the back of the house to head off any possible escape through the back garden. They remained in the back garden and made no attempt to enter the house.
Shortly afterwards, a number of gardai went to the front door of the house and rang the door bell. The door was answered by a person who did not identify himself but who is now known to be Ciaran Gaffney, a brother of the defendant. The gardai asked Mr. Gaffney if he could assist them in their investigations following a series of offences pursuant to the Road Traffic Acts. Mr. Gaffney replied that they were not welcome on the property and that they were to leave. The gardai left and returned approximately 10 minutes later. The door was again answered by Mr. Ciaran Gaffney and after a similar request was made of him by the gardai they were told to leave the premises. Following an incident at the door Ciaran Gaffney was arrested for assaulting one of the gardai and placed in a patrol car. One of the gardai making enquiries of Mr. Ciaran Gaffney was Inspector John Killeen of Rathmines garda station. Inspector Killeen stated in evidence that after Mr. Gaffney was taken into custody he, Inspector Killeen, again knocked on the open door and asked if anybody was inside. Inspector Killeen stated that he could hear a male voice answer “Yes, in here”.Inspector Killeen and his accompanying gardai then entered the premises where they arrested the defendant.”
The learned District Justice having considered these facts made the following finding of fact:” “(1) There was no invitation to the gardai to enter the premises.”
On foot of that finding the questions on which he stated the case were as follows:”
“(i) If having arrested Ciaran Gaffney (who had denied gardai an invitation to enter the premises) for one offence, were the gardai entitled to enter the premises pursuant to s. 107 of the Road Traffic Act, 1961, as amended, which was a totally unrelated offence?
(ii) If the gardai were not so entitled to enter the premises, did they make a lawful arrest of the accused Kenneth Gaffney?”
The learned High Court judge answered in the affirmative to each of the questions put.
The essential facts of the case were not in dispute and they were that when the gardai first called to the house one occupant of the house namely, the brother of the defendant, refused them entry, and requested them to leave. When the gardai called again, ten minutes later, they were again told to leave, there was then apparently some alleged incident as the result of which the said occupant of the house was arrested for allegedly assaulting one of the gardai and placed in a patrol car. After that the garda inspector in question again approached the house, knocked on the open front door asking if anybody was inside and a male voice answered from the interior saying “Yes, in here”. The real question then is whether in the circumstances of the case the male voice which answered saying “Yes, in here” was extending permission to the gardai to enter the premises which had been refused to them twice already. In my view, in the circumstances of this case, the reply to the question as to whether or not there was anybody in the house could not be construed as an invitation to enter. The learned District Justice found as a fact that there was no invitation to the gardai to enter the premises which was the dwelling of the defendant also.
The learned High Court judge was of opinion that “there was no invitation in the ordinary sense of the word to enter the premises”, but said”there was certainly no refusal, no request to leave, and no rejection of the opportunity of the inspector to make a common law arrest.”
In view of the fact that the gardai had twice been expressly refused permission to enter the house and that there had been no express invitation in the ordinary sense to enter the premises, an invitation cannot be presumed either as a matter of fact or of law simply because there was no express refusal. Notwithstanding the decision of O’Hanlon J. in Director of Public Prosecutions v. Closkey (Unreported, High Court, 6th February; 1984) and the English decision of Morris v. Beardmore [1981] A.C. 446, it is my view that the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter, particularly in the circumstances of this case. The latter decision not only adds no support to the view that police officers in such a situation as the present one had any lawful authority to be in the house but makes quite clear that without permission to be present in the house the policeman was a trespasser. There may well be cases where, having regard to all the circumstances, a failure to give an express refusal to entry might be construed as an implied permission to enter. But certainly this is not one such case, having regard to the evidence of what in fact had preceded the entry of the gardai into this house. The gardai could, on the evidence, be held to have had a licence to proceed from the gateway to the front door (see Robson v. Hallet [1967] 2 Q.B. 939) but after that an entry without permission would have been unlawful. The granting of permission would have given a licence to enter but nothing more. If they had been requested to enter on the occupiers’ business they would become invitees for the purposes of occupiers’ liability. The distinction between “invitee” and”licensee” in the latter subject has no relevance to the present case. So far as the lawfulness of their presence in the house was concerned the only question was whether there was permission, express or implied, to be there. I construe the District Justice’s findings of fact to mean that there was no such permission. Two express refusals by the aforesaid occupier to permit entry followed by the words attributed to the defendant after the forcible removal of the brother from the house could scarcely be otherwise construed, apart from the fact that the defendant was not shown to have any authority to determine who should be permitted to enter. In Director of Public Prosecutions v. Closkey unlike the present case, the owner defendant who dwelt in the house raised no objection to the garda presence after his sister who also dwelt there had admitted them and in the circumstances could have been held to have acquiesced in their presence.
It appears that both in the District Court and in the High Court it was sought to justify the entry without consent and without invitation by reference to s. 107 of the Road Traffic Act 1961. That section deals with the duty of persons suspected of having committed a specified offence under the Act to give his name and address to the gardai or to risk arrest if he does not do so. Under that section arrest without a warrant is authorised by law in the circumstances set out in that section. However, nowhere does the section purport to give any authority to enter a private dwelling without the permission of the owner or occupant of the dwelling. No other provision in the Road Traffic Act, 1961, has been referred to as conferring any such right, or indeed, either for the purpose of effecting an arrest without a warrant for any alleged infringement of the Acts or otherwise. Furthermore there was no allegation of any offence having been committed contrary to the provisions of s. 107 of the Act of 1961.
In my view, therefore, the entry made by the Garda Siochana in the present case was one not authorised by law and was in breach of the constitutional guarantee of the inviolability of the dwelling of every citizen contained in Article 40, s. 5 of the Constitution. Therefore the arrest effected on foot of that unlawful and unconstitutional entry was illegal.
I would therefore answer in the negative each of the questions put. In my view, the order of the High Court should be set aside and the case stated returned to the District Court to be decided by the District Justice in a manner not inconsistent with the answers which I have suggested should be given to the questions put.

Henchy J.
On the basis of the relevant facts (which are set out in the judgment of Walsh J.) I am satisfied that it is impossible to disturb the finding of the District Justice that the gardai who entered the defendant’s house and arrested him had not been invited by him to enter. The crucial question then is, were they trespassers? For if they were, the arrest was unlawful and in consequence the prosecution must fail. That follows because, as was pointed out by Lord Scarman in Morris v. Beardmore [1981] A.C. 446 at p. 463:”
“When for the detection, prevention or prosecution of crime Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation.”
The pertinent rights given to members of the Garda Siochana by the Road Traffic Acts ” and in particular the right of arrest without warrant given by s. 49, sub-s. 4 of the Act of 1961 ” are substantial invasions of the personal rights enjoyed before the enactment of those provisions and there should not be attributed to Parliament an intention that such personal rights were to be curtailed further than the extent expressed in the statute. In other words, the right of arrest given should not be construed as extending to the infringement of any fundamental right other than the right of freedom from arrest without warrant by a member of the Garda Siochana.
Where, as in this case, a member of the Garda Siochana purports to make an arrest without warrant in the defendant’s dwelling, the power of arrest relied on, in the absence of any express statutory extension of that power authorising an arrest without warrant in a citizen’s dwelling, must be construed subject to the defendant’s right to the inviolability of his dwelling. As far as this State is concerned, the defendant’s common law right to the inviolability of his dwelling (namely to be free from intrusion save where authorised by law) has been elevated to a constitutional guarantee by Article 40, s. 5, of the Constitution and has been recognised as a fundamental right by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It follows that if the arresting member of the Garda Siochana is in the dwelling unlawfully (i.e., as a trespasser) at the time of the arrest, the arrest is unlawful.
This conclusion is in line with the unanimous decision of the House of Lords in Morris v. Beardmore [1981] A.C. 446 where, before the arrest relied on, the defendant conveyed to the arresting police officers that they were trespassers in his house and requested them to leave. The arrest was therefore held to have been unlawful.
It does not follow that because a person who enters a dwelling is not an invitee he is automatically a trespasser. He may be lawfully on the premises as a licensee, express or implied. The test is whether the person claiming the householder’s rights could succeed in an action in tort for trespass. As I understand it, the law is that it is a good defence to such an action that the defendant was at the relevant time on the premises by leave or licence, express or implied, of the plaintiff or of the person entitled to give such leave or licence. Such defence is an example of an application of the maximvolenti non fit iniuria. In each case where the defence of leave or licence is raised, it is a question of fact whether in the particular circumstances the defendant was on the premises by express or implied leave or licence. Where the matter depends on oral evidence, it is for the trial judge, who has seen and heard the witnesses, to decide if the defendant was a licensee, and if there was evidence to support his conclusion, that conclusion may not be disturbed on appeal, except where the appeal is in the form of a new hearing.
In this case there is the clear and unquestioned finding of the District Justice that the arresting gardai were not invitees. But the District Justice does not seem to have addressed his mind to the question and certainly made no finding as to whether the gardai were licensees. MacKenzie J. in dealing in the High Court with this case stated said:”
“Although there was no invitation, in the ordinary sense of the word, to enter the premises there was certainly no refusal, no request to leave and no rejection of the opportunity of the inspector to make a common law arrest.”
I take that to mean that MacKenzie J. was holding that the gardai were licensees and if that finding had been made by the District Justice I for my part would not disturb it. But I think it is for the District Justice alone, for it was he who saw and heard the witnesses, to decide in the light of the nuances of the situation whether the gardai were trespassers or licensees.
It all depends on the proper construction to be put on the words “Yes, in here” used in reply by the defendant when Inspector Killeen knocked on the open front door of the house and asked if anybody was inside. I should have thought that such a reply to such a query would normally be taken to mean “yes, I am in, and I am to be found in this room”. However, I consider that it is for the District Justice to hold, having regard to the full context and the realities of the situation, whether the defendant in replying as he did to the inspector’s query was acquiescing in his entry.
An example of a licence which validated an arrest in a dwelling is the decision of O’Hanlon J. in Director of Public Prosecutions v. Closkey (Unreported, High Court, 6th February, 1984). In that case the defendant, who was suspected of having committed a Road Traffic Act offence was pursued by the gardai to his house. They were admitted to the house by the defendant’s sister, who lived with him, and she showed them to the defendant’s bedroom, where he was in bed asleep. He was roused by one of the gardai, who told him that he was being arrested pursuant to the relevant provision of the Road Traffic Acts. The arrest was proceeded with notwithstanding that the sister sought to resist the physical arrest. The defendant was convicted in the District Court and on appeal by him to the High Court by way of case stated it was not contended that the original entry by the gardai was unlawful but it was submitted that when the sister sought to interfere with the physical arrest of the defendant she revoked the permission to enter previously given and made the gardai trespassers. Rejecting this submission and holding that the gardai were not trespassers and that the arrest was lawful, O’Hanlon J. distinguished Morris v. Beardmore [1981] A.C. 446 in that in the latter case the police had been expressly made trespassers in the house at the time of the arrest. O’Hanlon J. held that the sister’s act in seeking to interfere with the physical arrest of the defendant did not amount to a revocation of the permission to enter previously given.
I would allow this appeal to the extent of holding that the questions posed in the case stated should be dealt with by ruling that it is for the District Justice to decide whether the gardai were licensees at the time of the alleged arrest; that if they were not, the complaint should stand dismissed; but that if they were licensees, the hearing should proceed on the basis that the arrest was lawful.

Hederman J.
I agree with the judgment which has been delivered by Walsh J.

McCarthy J.
Article 40, s. 5 of the Constitution provides:” “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” It would appear that the only decision of this Court construing this section is The People (Attorney General) v. O’Brien [1965] I.R. 142 in which Walsh J., with whose judgment O’Dalaigh C.J. agreed, said, at p. 169:”
“That does not mean that the guarantee is against forcible entry only. In my view, the reference to forcible entry is an intimation that forcible entry may be permitted by law but that in any event the dwelling of every citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry.”
Kingsmill Moore J., whose judgment should be considered in part a majority judgment (see the judgment of Finlay C.J., in Director of Public Prosecutions v. McMahon [1986] I.R. 393) did not comment on this construction of Article 40, s. 5, although he did expressly refer to the judgment of Walsh J. in another context. I wish to express my agreement with the cited observations of Walsh J. in O’Brien’s Case. [1965] I.R. 142.
Where the dwelling of a citizen is entered by the gardai or other forces of the executive, in my opinion the burden lies upon the entrant to prove that the inviolability of that dwelling has not been breached. In his judgment, MacKenzie J. referred to the premises as the defendant’s home. It is reasonable to infer that it was also the home, and, consequently, the dwelling of Ciaran Gaffney, the defendant’s brother who was on the premises at some time shortly after 3.30 a.m. When the gardai sought admission to the house, Ciaran Gaffney “replied that they were not welcome on the property and that they were to leave.” Shortly afterwards he was arrested on a charge of assaulting one of the gardai. Inspector Killeen knocked on the open (emphasis added) door and asked if anybody was inside; he heard a male voice answer “Yes, in here”. The District Justice concluded, in my view correctly, that there was no invitation to the gardai to enter the premises. In my judgment, no other conclusion was open on the facts as set out in the case stated. MacKenzie J. appears to have rested his judgment upon the view that there was no definite refusal nor was there any request by the defendant that Inspector Killeen should leave. These matters are not relevant. The gardai had sought access to the dwelling of two citizens, one of whom had refused them access. A male voice saying”Yes, in here” could not override that refusal. This has nothing to do with any of the legal principles enunciated in Morris v. Beardmore [1981] A.C. 446 which case, in my view, is not germane to the issue here. MacKenzie J. correctly distinguished the facts in this case from Morris’s Case but on the authority of Director of Public Prosecutions v. Closkey (Unreported, High Court, O’Hanlon J., 6th February, 1984) concluded that there was a lawful arrest. It must, first, be shown that the dwelling was entered in accordance with law. In my view, the various relationships commonly identified in issues of occupiers’ liability in tort are not relevant to a criminal law issue such as the present. I have recently expressed my own views on this legal concept ( Rooney v. Connolly [1986] I.R. 572) although I recognise that the issue was not argued in the particular case, no more than it was in the instant appeal. In Closkey’s Case the gardai had been admitted to the premises by the defendant’s sister whose dwelling it was, and the arrest had, at least, commenced if not been concluded before the sister resisted and obstructed the gardai. If the defendant’s sister had, before the arrest, revoked the permission she had given, then Closkey’s arrest would have been, in my view, unlawful. If O’Hanlon J. held that, notwithstanding a prior revocation of permission by the defendant’s sister, he was nonetheless lawfully arrested by the gardai who had been lawfully admitted, in my view the case was incorrectly decided.
I would accordingly allow this appeal and concur in the order proposed by Walsh J.

 

People (DPP) v Tyndall

[2005] I.E.S.C. 28; [2005] 1 I.R. 593

Judgment delivered on 3rd day of May, 2005 by Denham J.

1. At issue in this case are the proofs of an arrest in a trial where the State was put on notice that the arrest was being challenged. The arrest was made pursuant to s.30 of the Offences Against the State Act, 1939 (hereinafter referred to as the Act of 1939) under which a member of the Gárda Síochána may arrest any person whom he or she suspects of having committed or being about to commit or being or having been concerned in specific offences.

2. The issue comes before the Court on an appeal pursuant to s.29 of the Courts of Justice Act, 1924. The Court of Criminal Appeal has certified that its decision of the 26th May, 2003, refusing Michael Tyndall, the applicant/appellant, hereinafter referred to as the applicant, leave to appeal against his conviction by the Dublin Circuit (Criminal) Court on the 9th March, 2001, involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken to the Supreme Court on that decision.

3. The points of law certified for consideration by this Court are:
(a) Whether the Court of Criminal Appeal was correct in determining that the arrest of the applicant was a valid arrest pursuant to s.30 of the Offences Against the State Act 1939 in circumstances where no evidence was led as to the suspicion of An Gárda Síochána that the applicant had committed a scheduled offence at the time of the arrest. The extent of the evidence of Detective Sergeant Campbell on the arrest was that of arrest, charge and caution.
(b) Whether the Court was entitled to infer the requisite suspicion for the purposes of a s.30 arrest in any circumstances.
(c) Whether the wording of the section is such as to require formal proof by leading oral evidence in specific terms of the existence of the suspicion of the arresting officer given that the suspicion is a statutory element of a valid s.30 arrest.

4. Background
The background to the case is that James Mahon, a milkman by occupation, was at home with his family, his three children, his partner Georgina Finn and her brother Christopher Finn. Two men entered the house. One had a baseball bat and the other a knife and gun. Mr. Mahon was stabbed and badly injured. The prosecution case was that the applicant was the man who had the knife and gun.

The applicant was charged on indictment that on the 9th April, 1999, (i) he did have with him a firearm namely a Smith and Weston air pistol of 6mm calibre with the intent to commit the indictable offence of robbery; (ii) robbed one James Mahon of cash to the value of £450; (iii) intentionally or recklessly caused serious injury to James Mahon.

The applicant pleaded not guilty on all counts and on 21st February, 2001 his trial commenced in the Dublin Circuit Criminal Court before His Honour Judge McCartan and a jury. The applicant was convicted on all counts and sentenced to a term of 12 years imprisonment on the 20th March, 2001.

5. Law
Section 30(1) of the Offences Against the State Act 1939 provides:
“A member of the Gárda Síochána … may without warrant … arrest any person … whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act…”

The words of the section are clear. A member of the Gárda Síochána may without warrant arrest any person whom he suspects of having committed or being about to commit or being or having been concerned in the commission of a specified offence. The suspicion is a condition precedent to the arrest. Section 30 gives to a member of the Garda Síochána a significant power.

6. The evidence of arrest
The evidence of the arrest was that Sergeant Patrick Campbell stated:
“I knocked on the front door, my Lord, Mr. Michael Tyndall opened the front door. I identified myself as a member of an Gharda (sic) Siochana from Shankill Station and I immediately arrested Mr. Michael Tyndall under Section 30 of the Offences Against the State Act, of 1939 for the scheduled offence of unlawful possession of firearms at 33 Clifton Park, on 9th of April, 1999.”
He gave the applicant the usual caution and informed him that he was arresting him under s.30 of the Offences Against the State Act, 1939.

7. The Trial Judge held that the arrest was valid stating:
“… It is correct from the evidence he gave that he did not state specifically in his testimony that he had a suspicion. But I am prepared to infer and give the proper and ordinary meaning to the words that when the Detective Sergeant informed the accused at the front door that he was arresting him under Section 30 of the Offences Against the State Act 1939 for the unlawful possession of firearms … and proceeded to caution him and tell him why he was being arrested, that the Detective Sergeant was and had at that time a reasonable suspicion. The mere omission in evidence of the words, because I had a reasonable suspicion or the suspicion of his unlawful possession, does not render that arrest in my view incomplete or unsatisfactory … But I do not hold the view that the mere omission of the use of the words amounts to de facto or de jure an absence or omission or non-existence of that suspicion. Detective Sergeant Campbell was the officer in charge of the investigation which was underway since the 9th of April 1999. He was in possession of the facts, he had obtained a search warrant, though it has not been relied upon or produced in evidence for the purposes of a search of the home of the accused under section 30, and he went there. Immediately Mr. Tyndall appeared to him at the door, he arrested him for the unlawful possession of firearms at 33 Clifton Park on the 9th of April. I am satisfied that that by definition, or as Mr. Gaffney puts it, leads to an irresistible inference that he had such a suspicion and acted upon it. Consequently, I am satisfied that the arrest is lawful for the purposes of this trial.”

8. The Court of Criminal Appeal held:
“This court is satisfied that if the learned trial judge was entitled to draw inferences on this issue from the specific evidence adduced, then there was ample evidence on which he could draw such an inference. The only issue is whether the wording of the section is such as to require formal proof in specific terms of the existence of the suspicion by the arresting officer. The section validates the arrest without warrant of the person “who he suspects” of having been concerned with the commission of the relevant offences. It says nothing as to how this suspicion is to be arrived at, or as to the strength of the suspicion. Of course, this suspicion must be genuine, and even if the arresting officer gives evidence that he had a suspicion, he may be cross-examined to show that it was not genuine. However, this does not affect the nature of the proof of the suspicion. There is nothing in the section to indicate that the suspicion need be proved in any particular way, it is simply one fact which the prosecution must prove. While in criminal prosecutions it is more difficult to infer matters than in civil proceedings, nevertheless the drawing of inferences is an essential ingredient in many criminal prosecutions.

In the present case, the validity of the arrest was a matter of law to be determined by the trial judge, but nevertheless it was a matter in relation to which the onus of proof, as in all matters in criminal proceedings, lay on the prosecution, and that the onus of proof was to satisfy the court beyond all reasonable doubt that the arrest was valid. This court is satisfied that the prosecution was entitled to so satisfy the court by inferences from undisputed evidence of fact, and is further satisfied from the words of the learned trial judge that there was “an irresistible inference that he had such a suspicion and acted upon it”, that the learned trial judge was satisfied beyond all reasonable doubt that the relevant suspicion did exist in the mind of the arresting officer, and that he was entitled to draw the inferences which he drew. The court is therefore satisfied that the arrest was valid.”

9. Submissions
On behalf of the applicant Mr. Ciaran O’Loughlin S.C. and Ms. Marie Torrens B.L. submitted that the State was put on notice that the arrest was being challenged but that the evidence given by Detective Sergeant Campbell did not include evidence of his suspicion as is required under s.30 of the Act of 1939. Further, that he gave no evidence from which the court could infer his suspicion. To clarify the situation, it was agreed that there was no evidence of a search warrant before the court. Counsel submitted that evidence of the suspicion of the arresting member of the Gárda Síochána was an essential proof and that it did not exist in this case.

Mr. Maurice Gaffney S.C., on behalf of the Director of Public Prosecutions, accepted that Ms. Torrens B.L., had put the prosecution on notice that the arrest would be challenged. He submitted that evidence was offered and that the learned trial judge was satisfied. He accepted that there was no direct evidence of his suspicion by the arresting guard. However, counsel submitted that there was circumstantial evidence from which the suspicion could be inferred. Counsel submitted that the investigating officer gave evidence that he went to the door and arrested the applicant and told him why he was arresting him and that inferences may be drawn from the circumstances of the case. The circumstances of this case were that the arresting officer was the investigating officer, that he had the powers under s.30 of the Act of 1939, and that he exercised those powers. It was submitted that the terms of s.30 require a ‘suspicion’ of the arresting member and that there was circumstantial evidence from which it could be inferred that he had the suspicion. This circumstantial evidence was: (a) the fact that the arresting officer was the investigating officer, (b) that he was a detective sergeant, (c) that an inference must be drawn that he was appraised of the crime, (d) and that it was expressed to be a s.30 arrest. Counsel submitted that the inference is irresistible that the arresting officer had the suspicion and that a jury would have so found. He submitted that it is unimaginable that the detective sergeant would arrest a person on whom he had no suspicion. He submitted that the learned trial judge was entitled to conclude that the circumstances were sufficient to compel an inference that the necessary suspicion existed.

10. Decision
Section 30 of the Act of 1939 requires that the arresting member of the Gárda Síochána have a suspicion as set out in the section. This is an essential condition precedent to arrest. The section does not indicate that the suspicion has to be proved in any special manner. In People (DPP) v Quilligan [1986] I.R. 495 at p. 507 Walsh J. stated:
“It is to be noted that before exercising any of the powers conferred in s.30 the Garda concerned must have the required suspicion whether or not the Garda in question has the required suspicion is itself a question of fact …”
Proof of this fact, of the suspicion, may be by direct evidence. There was no such direct evidence in this case.

I agree with the learned trial judge that the omission of direct evidence of the suspicion does not render the arrest unsatisfactory if the suspicion may be inferred from the circumstances. The suspicion held by the arresting member of the Gárda Síochána may be inferred from the circumstances.

Section 30 is pivotal to the decision of this case, – as it was in The People (D.P.P.) v Quilligan [1986] I.R. 495. In Quilligan Walsh J. stated, at p.506:
“Section 30 of the Act, which is in Part IV and therefore part of the legislation permanently in force, is the pivotal point of the present case. That section provides that a member of the Gárda Síochána (a) in uniform, or (b) if not in uniform, on production of his identification card if demanded, may without a warrant do the following acts or any one or more of them in respect of any person (i) whom he suspects of having committed or being about to commit, or (ii) being or having been concerned with the commission of, an offence under any section or subsection of the Act of 1939, or an offence which is for the time being a scheduled offence for the purpose of Part V of that Act, or whom he suspects of carrying a document in relation to the commission or intended commission of any such offence as aforesaid, or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid, (a) stop, (b) search, (c) interrogate, (d) arrest any such person, or do any one or more of these things in respect of such person. It is to be noted that before exercising any of the powers conferred in s. 30 the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not then the action taken by virtue of s.30 and purported pursuant to s.30 would be illegal. Furthermore the suspicion must be one which is bona fide held and not unreasonable – see the views of this Court in The State (Lynch) v Cooney I.R. 337 when dealing with the “opinion” formed by the Minister in question. The “suspicion” of a member of the garda in relation to s.30 is not beyond judicial review as is clearly established by the decision of this Court in The State (Trimbole) v The Governor of Mountjoy Prison [1985] I.R. 550.”

Of the evidence of suspicion in Quilligan Henchy J stated, at p. 514:
“There was a bona fide suspicion on the part of the arresting garda that the accused had been concerned in the commission of what unquestionably was at the time a scheduled offence”.

The evidence in Quilligan showed the existence of a genuine suspicion by the members of the Gárda Síochána that the accused had been involved in the scheduled offence of malicious damage to property.

Evidence of the suspicion of the arresting garda may be inferred from the circumstances, but evidence must exist from which it may be inferred. An analogy may be drawn with s.49(6) of the Road Traffic Act, 1961 where an ‘opinion’ is required by the arresting member of the Gárda Síochána. In Director of Public Prosecutions v O’Connor [1985] I.L.R.M. 333 Henchy J. stated at p.p. 334 – 335:
“I readily accept that for the validity of the arrest under s.49 (6) it was necessary for the prosecution to show that Garda Flynn had formed the opinion that the defendant had committed an offence under that section. Consider then what Garda Flynn’s evidence was. According to the case stated it was proved or admitted that he had ‘informed the defendant that he was arresting him under s.49 (6) for an offence under s.49 (2) and (3)’. Does that show that the garda had formed an opinion that the defendant had committed an offence under the section? Counsel for the defendant submits that it may mean no more than an opinion that the defendant may have committed an offence under the section. And that, he argues, was insufficient to support a valid arrest and consequently a valid conviction.

I must confess that I regard this point as having substance only if plain words are not given their ordinary meaning and the realities of the situation are ignored. Garda Flynn had seen the erratic way the bus had been driven when it turned off the dual carriageway into Kill. In doing so it swung very wide and swerved twice. When the garda spoke to the defendant he noticed that his breath smelled of alcohol and that his speech was slurred. The defendant then failed an alcolyser test. It is in those circumstances that we are asked to say that, although the garda told the defendant that he was arresting him ‘under s.49(6) for offences under s.49(2) and (3)’, this may mean only that the garda was of opinion that such an offence may have been committed, as distinct from had been committed. S.49 (6) is in the following terms:
A member of the Gárda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.
I regard the garda’s evidence in the District Court to have been to the effect that he told the defendant that, in exercise of the power of arrest given by s.49(6), he was arresting him for having committed an offence under the section. In other words, when the garda said to the defendant that he was arresting him under s.49 (6), he was by necessary implication invoking the terms of that section. When the words spoken are related to those terms and to the circumstances, the garda’s evidence must be taken to mean that he had formed the opinion that the defendant had committed an offence under the section.”

The O’Connor case concerns the Road Traffic Act and so is not on all fours with this case. It is analogous in that while requiring an ‘opinion’ of the arresting member of the Gárda Síochána such opinion may be inferred from the circumstances. However, there were clear circumstances in O’Connor from which the opinion of the arresting member could be inferred.

In this case there was no such evidence brought before the Court to enable it to infer the suspicion. The mere fact of the arresting member being an investigating officer, a detective sergeant, is insufficient. The result is that the prosecution relies on the arrest to prove the suspicion required of the member of the Gárda Síochána in circumstances where the member may only arrest if he already had the suspicion required.

Suspicion is not defined in the Act. It should be bona fide and not irrational. It is a fact to be proved by direct evidence, or it may be inferred from the circumstances. It is an essential proof. The circumstances of this case were not such as to enable a court to infer the suspicion. The learned trial judge was not entitled to conclude that the circumstances were sufficient to compel an inference that the necessary suspicion existed. If the fact of an arrest by a detective sergeant, who was an investigating officer, was sufficient from which to infer the required suspicion of the member of the Gárda Síochána, when the arrest is only valid if the member has the necessary suspicion, it would be to apply reasoning which is circular and flawed. There must be circumstances other than the arrest itself by a member of the Gárda Síochána from which the suspicion of the arresting member may be inferred.

The clear words of s.30 require that the arresting member of the Gárda Síochána have a suspicion. Evidence of that suspicion may be given either by direct evidence or by indirect evidence. There was no such evidence in this case.

Consequently I would answer the questions posed as follows:
(a) No. In the circumstances where there was no evidence as to the suspicion of the Gárda Síochána that the applicant had committed a scheduled offence at the time of the arrest, the Court of Criminal Appeal was not correct in determining that the arrest of the applicant was a valid arrest pursuant to s. 30 of the Offences Against the State Act, 1939.
(b) The Court is entitled to infer the requisite suspicion for the purposes of a s.30 arrest. As to whether there is proof of the suspicion will depend on the circumstances.
(c) The wording of s.30 of the Act of 1939 requires proof of the existence of the suspicion of the arresting member of the Gárda Síochána which may be proved by direct evidence or indirect evidence arising in all the circumstances.

It becomes unnecessary now to consider the other grounds of appeal which related to points not certified. Having regard to the view I have formed of the arrest, I would allow the appeal. I would set aside the Order of the Court of Criminal Appeal and substitute therefore an Order (i) granting leave to appeal; (ii) treating the hearing of the application for leave to appeal as the hearing of the appeal itself; and (iii) quashing the conviction and sentence of the Circuit Court.

D.P.P. (People) v. Donaghy

 

[1988] IECCA 1 (25 July 1988)
Judgment of the Court delivered the 25th day of July 1988 by McCarthy J.

On Sunday the 5th October 1986, shortly after 2 a.m., Vincent Kavanagh, while walking down Griffith Avenue Extension in the City of Dublin, was engaged in conversation by a group of three young men and a girl who walked with him for a few minutes down the road. They then assaulted and robbed him; the girl took a chain off his neck and spat in his face.. This appeal concerns the conviction of Yvonne Donaghy, whom Mr. Kavanagh subsequently identified as the girl who had assaulted and robbed him. After a trial in the Dublin Circuit Court she was convicted on the 3rd April 1987 on counts of robbery and assault, for which she was sentenced to two years imprisonment. On application to this Court on the 11th May 1987 she was granted leave to appeal and bail pending appeal. Having heard argument on the 16th May 1988, this Court allowed the appeal and quashed the convictions; it now states its reasons The issue at the trial was that of identification; Vincent Kavanagh identified the Appellant when he saw her in the vicinity of the Children’s Court at Smithfield, Dublin on the 13th October 1986. The quality of the identification, having regard to its circumstances, was challenged but that is not relevant now. The Appellant was arrested at 6.30 a.m. on the 13th October by Garda Mclntyre.

It is common case that the warrant, issued by a Peace Commissioner, was, for reasons not relevant, invalid and, consequently, the arrest was unlawful. There is no suggestion that the defects in procedure were other than accidental; there was no conscious impropriety on the part of Garda Mclntyre. After arrest, the Appellant was brought to and charged at Finglas Garda Station and, then, to the Children’s Court Building at Smithfield, where it was known that another accused, David Kearns, who was a minor, would be appearing on remand charged with offences arising out of the same incident. Garda Mclntyre had reliable information that the Appellant was the girl involved, but had no admissible evidence to that effect. Garda Mclntyre whilst stating that he had the additional purpose of bringing the Appellant before a Court as soon as reasonably practicable after arrest agreed that his purpose was to have her at the particular Court at a time when Vincent Kavanagh would be present to see if he would identify her.

In Walsh’s case at page 300 O’Higgins C.J. said:

“However, such an arrest and subsequent detention is only justified at common law if it is exercised for the purpose of which the right exists, which is the bringing of an arrested person to justice before a court. If it appears that the arresting gardal have no evidence on which to charge the person arrested, or cannot justify the suspicion on which he was arrested, he must be released. He cannot be detained while investigations are carried out. Reasonable expedition is required but more than this cannot be demanded Regard must be had to the circumstances and to the time of the arrest. If a person is arrested late at night, it scarcely seems unreasonable if he is held overnight and charged before a court the following morning.”

(1) People (D.P.P.) -v- Raymond Walsh (1980) I.R. 294

 

The important thing is that his detention after arrest must be only for the purpose of bringing him before a District Justice or a Peace Commissioner with reasonable expedition so that a court can decide whether he is to remain in custody or to be released on bail.”

 

If evidence is obtained by illegal means, involving a breach of constitutional rights, it is difficult to see how that may not, of itself, lead to the rejection of the evidence. When this is combined with an ulterior, if not improper, motive or purpose, the trial Court must reject such evidence. If the District Justice, in the present case, has asked Garda Mclntyre if he had any evidence to connect the Appellant with the crime he would have been forced to answer “not yet but I hope to have it if the victim arrives in time to identify her here in Court or outside Court”; the District Justice would have been bound to direct her immediate discharge. So also is the Court of Trial. It is unnecessary to consider the further argument advanced on behalf of the Director to the effect that the reasoning in O’Brien’s case excusing the illegality of breach of constitutional rights could be applied in the instant appeal. Suffice it to say that in O’Brien’s case the conduct of the Gardai was not tainted by any ulterior motive; it was a case of a typing error.

 

D.P.P. v. Early

[1997] IEHC 179; [1998] 3 IR 158 (2nd December, 1997)

Transcript of Ex Tempore Judgment given by Mrs. Justice McGuinness on Tuesday 2nd December, 1997

1. In these judicial review proceedings, the Applicant, who is the Director of Public Prosecutions, seeks orders of certiorari to quash orders made by the Respondent, District Judge Early, on 18th and 20th November, 1997 in relation to a prosecution of the five Notice Parties, Patrick Ralph, Maurice O’Riordan, Christopher Burke, Eugene Kelly and Michael Maguire, on charges pursuant to the Misuse of Drugs Act, 1977. By these orders, the Respondent District Judge on 18th November, 1997 discharged the five Notice Parties from custody and on 20th November, 1997 discharged the first, second and third named Notice Parties from custody.

2. The Applicant also seeks an order of mandamus compelling the Respondent to charge or permit the charging of all or any of the Notice Parties with specified offences under the Misuse of Drugs Acts, 1977 to 1984. Statements of opposition have been filed on behalf of the first, second and third named Notice Parties. Each of these Notice Parties was fully represented in Court by solicitor and by Senior and Junior Counsel in the hearing before me.

3. The District Judge, having been served with the proceedings, did not file a statement of opposition and took no part in the proceedings. Despite the best efforts of the Gardaí on at least two occasions, it proved impossible to serve the fourth and fifth named Notice Parties with the proceedings, and they therefore took no part in them.

THE FACTUAL BACKGROUND
4. The factual background to these proceedings is set out in the affidavit of Claire Loftus, a solicitor in the Chief State Solicitor’s office. This affidavit was strongly criticised by Counsel on behalf of the three Notice Parties, and in particular by Counsel on behalf of the first named Notice Party. It was criticised on the grounds that, particularly in the first part of the affidavit, it contained a considerable amount of hearsay. Whereas hearsay is permissible to an extent in an affidavit for the purpose of ex parte application for leave to issue judicial review proceedings, it is contrary to the provisions of the Superior Court Rules in the case of affidavits to be used in a plenary hearing. There is some basis for the criticism of Ms. Loftus’ affidavit. I accepted this during the course of the hearing, particularly as regards the first part of the affidavit. However, I would also have to accept that there was no actual challenge, either in the statements of opposition or during the hearing, to the facts as set out in Ms. Loftus’ affidavit. Nor was there any suggestion that the events described therein did not occur.

5. On 13th November, 1997, the Gardaí discovered some 300 kg of cannabis resin at a house in Tallaght. Subsequently, the first, second and third named Notice Parties were arrested under section 25 of the Misuse of Drugs Acts, 1977 to 1984 for offences under section 15 of the 1977 Act. Some short time later, the fourth and fifth named Notice Parties were arrested nearby. It is alleged that they had a quantity of cannabis in the boot of the car in which they were travelling. All five Notice Parties were detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. I will deal with the provisions of that Act later in this judgment.

6. They were detained under section 2 of the 1996 Act for investigation of the alleged offences. They were first held for the six hour period which is permitted under section 2(2)(a) of the Act, and subsequently, on the direction of Chief Superintendent Carty, for a further eighteen hour period under section 2(2)(b) of the Act. Again, on 14th November (the following day), under the direction of Chief Superintendent Carty, they were held for a further twenty-four hour period under section 2(2)(c) for the investigation of the offences. This, under the scheme of the Act, completed the amount of time that they could be held by the direction of a police officer not below the rank of Chief Superintendent.

7. At 6.30 p.m. on 15th November, 1997, an application was made to the District Court for a warrant allowing for a further seventy-two hour detention period under section 2(2)(g)(i) of the Act following on the forty-eight hours for which they had been held since their arrest. The application was made to District Judge Desmond Windle. District Judge Windle apparently considered that the matter lay within his jurisdiction and proceeded to deal with it. He made orders issuing the warrants required to allow the parties to be held for a further seventy-two hour period.

8. It is clear from the definition section of the Criminal Justice (Drug Trafficking) Act, 1996 (section 1) that not all District Judges have the jurisdiction to issue these warrants, as the definition of Judge of the District Court is given as: ” the President of the District Court or any other Judge of the District Court standing nominated for the time being for the purposes of this Act by the President of the District Court “.

9. It appears that District Judge Windle either was unaware that he had to be nominated or considered that he was in fact nominated for the purposes of the Act.

10. On 18th November, doubts arose among the Gardaí themselves as to whether in fact District Judge Windle was a nominated District Judge. On investigation, it transpired that apart from the President of the District Court himself, only District Judge Thelma King was nominated for the purpose of issuing the relevant warrants in the Dublin Metropolitan Area. When this was discovered, it became clear that the warrant holding the five Notice Parties was invalid and they were all released.

11. It appears to me somewhat strange that a situation was permitted to arise when neither the Gardaí dealing with drugs offences nor the District Judge himself (and presumably other District Judges as well) were kept informed as to who was nominated to issue the warrants necessary under the 1996 Act. However, this is not a matter which arises for decision before this Court in these proceedings.

12. The Director of Public Prosecutions then directed that all five Notice Parties were to be re-arrested pursuant to section 25 of the Misuse of Drugs Act, 1977 which section permits an arrest without a warrant. They were to be charged and brought before the Court in the normal way whereupon their cases would be dealt with by the District Court and processed under the Criminal Procedure Act, 1967.

13. The five Notice Parties were in fact re-arrested and brought before District Judge Early on 18th November. Submissions were made by solicitors on behalf of at least some of the Notice Parties that re-arrest was only permissible under section 4(1) of the Criminal Justice (Drug Trafficking) Act, 1996. Section 4(1) required that new information as to the parties suspected participation in the relevant offence had to be provided to the Court before the parties could be re-arrested for the purpose of further detention. Such re-arrest could only take place under the authority of a warrant issued by the Court. Submissions were apparently made by Detective Inspector Sutton that the re-arrest was not under section 4(1) but under section 4(5) which provided for arrest and immediate charge. District Judge Early accepted the submissions of the solicitors for the Notice Parties. Apparently, they were all released by five o’clock on that day.

14. The Gardaí then decided to seek ordinary District Court warrants to re-arrest the five Notice Parties. Since District Judge Early was dealing with the matter, they went to his house in Carlow on the evening of 18th November to ask him to issue warrants for the arrest of the five Notice Parties. In view of the attitude he had taken in regard to section 4(1) of the 1996 Act, he refused to issue the warrants.

15. On the following day, 19th November, application was made to District Judge Thelma King for the issue of warrants to re-arrest the Notice Parties. After some consideration, District Judge King issued the relevant warrants. On 20th November, the first, second and third named Notice Parties were re-arrested. It proved impossible to find the fourth and fifth named Notice Parties. The three arrested persons were brought before the Court, before District Judge Early. Evidence of arrest, charge and caution was given in each case. He remanded the second and third named Notice Parties in custody. Subsequently, Counsel for Mr. Ralph, the first named Notice Party, arrived at the District Court and made further submissions with regard to section 4(1) of the 1996 Act, which he argued overrode section 4(5). Ms. Loftus’ solicitor, on behalf of the Chief State Solicitor’s office and the Director of Public Prosecutions, made further submissions with regard to section 4(5) and opened case law in regard to the jurisdiction of the District Judge in general. However, the District Judge accepted the arguments of Counsel that the parties could only be re-arrested pursuant to section 4(1) of the Act and that this subsection overrode section 4(5). He discharged Mr. Ralph, the first named Notice Party, from custody. At a later stage, on the application of their Counsel, he also discharged the two other Notice Parties who had earlier been before the Court on the ground that their cases were identical to that of Mr. Ralph. The form of the order which the District Judge made in each case was:-

“I direct that the Defendant be discharged from custody.”

16. On 21st November, Counsel for the Director of Public Prosecutions made an ex parte application in this Court for leave to issue and serve the present judicial review proceedings. The return date was fixed for 2.00 p.m. on Monday 24th November. At that stage, Counsel for the three Notice Parties made a number of submissions and also sought an adjournment to allow time to prepare their cases. The proceedings were adjourned to Thursday 27th November, 1997 and were heard before me on that day and the following day.

SUBMISSIONS OF COUNSEL
17. Counsel for the Director of Public Prosecutions made thorough submissions with regard to the Criminal Justice (Drug Trafficking) Act, 1996 and its interpretation. He also made submissions concerning the jurisdiction of the District Court in respect of persons brought before it where charges were made against them. The three Senior Counsel appearing for the three Notice Parties who were represented in Court did not in fact make any submissions in support of District Judge Early’s interpretation of section 4 of the 1996 Act. However, they made various submissions in opposition to the making of the orders of certiorari and mandamus. Mr. Gaffney, on behalf of the first named Notice Party, made a submission in regard to the general jurisdiction of the District Judge and suggested that the District Judge’s decision may well have been affected by the fact that he considered that the Gardaí were acting mala fide in arresting and re-arresting the Notice Parties. The other Counsel argued that, while the District Judge may have been in error, his error was made within jurisdiction and therefore was not open to judicial review. All three Counsel also submitted that I should use the discretion which is inherent in judicial review proceedings to refuse the orders sought by the Director of Public Prosecutions. Mr. White, Senior Counsel for Mr. Burke, candidly acknowledged that the District Judge’s interpretation of the 1996 Act was in error and accepted that perhaps an order of mandamus lay but was opposed to the making of orders of certiorari. He suggested, however, that it might be premature to make an order of mandamus at this stage.

THE 1996 ACT
18. While no submissions were made by Counsel for the Notice Parties in support of District Judge Early’s interpretation of the Act, it nevertheless falls to this Court to consider the Act of 1996 and its interpretation. The long title to the Act is as follows:-

“An Act to make provision for additional powers of detention by the Garda Siochana of suspected drug traffickers following arrest, to make provision for the issuance of search warrants by certain members of the Garda Siochana in the case of suspected drug trafficking offences and for the attendance of officers of customs and excise at, and the participation of such officers in, the questioning of certain arrested persons by the Garda Siochana and to provide for related matters.”

19. I have recited this long title because it is clear from its wording that this is not a statute which establishes and defines criminal offences and/or sets penalties for those criminal offences, as is the case with the Misuse of Drugs Acts, 1977 to 1984. The 1996 Act ranges over a number of areas, but a major feature is the extension of the power of the Gardaí to arrest and detain a suspect without charge for the purpose of investigating a drug trafficking offence. Whereas, under the Criminal Justice Act, 1984 a suspected person may be held without charge for investigation for a maximum period of twelve hours, the 1996 Act permits a much extended period of detention reaching a maximum total of seven days.

20. This matter of detention for the investigation of offences is dealt with in section 2 of the Act. Section 2(1)(a) provides:-

“2.(1)(a) Where a member of the Garda Siochana arrests without warrant a person (‘the arrested person’) whom he or she, with reasonable cause, suspects of having committed a drug trafficking offence, the arrested person –

(i) may be taken to a Garda Siochana station, and

(ii) if the member of the Garda Siochana in charge of the station has, at the time of the arrested person’s arrival there, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence, may be detained in that station for a period or periods authorised by subsection (2).”

21. Subsection (2) sets out the periods of time during which a person may be detained in the Garda station for investigation of an alleged offence. The first period is a period of six hours and then, on the direction of a person not below the rank of Chief Superintendent, there may be a further detention of eighteen hours. Again, on the direction of a Garda of similar rank, the detention may be extended for a further twenty-four hours. Once that forty-eight hours has elapsed, there is no further possibility of holding a person simply on the decision of a high ranking officer of the Garda Siochana. At that stage, a member of the Garda Siochana not below the rank of Chief Superintendent must apply to the District Court for a warrant authorising a further seventy-two hours detention. If that is done, the District Judge must be satisfied on the evidence of the Gardaí that this further detention is necessary for the proper investigation of the offence concerned. Again, there may be a repeat of this procedure to give a further forty-eight hours, giving a total of not more than one hundred and sixty-eight hours. During all of this period the position is that if it becomes clear that there are no longer reasonable grounds for believing that the detention of the detained person is necessary for the proper investigation of the offence, the detained person shall, unless he or she is charged, be released from custody forthwith unless subsection (6) of Section 2 is applicable. There are quite a number of other safeguards contained in the section in regard to the holding of a person in detention in this way. Such safeguards are clearly necessary as this is a very considerable power going well beyond any power of detention that is contained in the normal criminal law. Obviously, the necessity to apply to the District Court for a warrant for further detention is also a safeguard to prevent the possible abuse of a citizen who has been detained for investigation.

Section 4 of the Act deals with re-arrest. Section 4(1) provides:-

“4.(1) Where a person is detained pursuant to section 2 and is released without any charge having been made against him or her, he or she shall not –

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

(b) be arrested for any other offence which, at the time of the first arrest, the member of the Garda Siochana by whom he or she was arrested suspected, or ought reasonably to have suspected, him or her of having committed,

except under the authority of a warrant issued by a Judge of the Circuit Court or a Judge of the District Court who is satisfied on information supplied on oath by a member of the Garda Siochana not below the rank of Superintendent that further information has come to the knowledge of the Garda Siochana since the person’s release as to his or her suspected participation in the offence for which his or her arrest is sought.”

Section 4(2) and section 4(3) deal with the way in which these matters are to be handled in the District Court. The section then proceeds to section 4(5) where it is provided:-

“Notwithstanding subsection (1), a person to whom that subsection relates may be arrested for any offence for the purpose of charging him or her with that offence forthwith.”

In the Criminal Justice Act, 1984, there are parallel provisions to this which have been used over quite a lengthy period of time. These provisions also permit the holding of persons for investigation of an offence. It should be remembered of course that prior to the Criminal Justice Act, 1984 (leaving aside the provisions of the Offences Against the State Act, 1939 which might be regarded as a special case of emergency legislation), there was no provision for arresting persons and holding them for investigation and questioning as opposed to arresting them, charging them and bringing them immediately before the Court. Thus, in 1984, it was an entirely new departure to provide for this type of arrest and detention in the ordinary criminal law.
Section 4 of the Criminal Justice Act, 1984 applies to any offence for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence. Section 4(2) provides that:-

“Where a member of the Garda Siochana arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Siochana station for such period as is authorised by this section if the member of the Garda Siochana in charge of the station to which he has taken on arrest has at the time of that person’s arrival station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.”

22. The section goes on to provide for two six hour periods of detention, an initial six hour period and a further six hour period where necessary and where so directed by an officer of the Garda Siochana not below the rank of Superintendent. As can be seen, this is a much shorter period of detention than that provided for under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996, but it is nevertheless parallel in type and purpose to that detention.

Section 10 of the 1984 Act, which is comparable to section 4 of the 1996 Act, provides:-

“10.(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 –

(a) be arrested again for the same offence, or

(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Siochana by whom he was arrested suspected him or ought reasonably to have suspected him,

except on the authority of a Justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Siochana not below the rank of Superintendent that further information has come to the knowledge of the Garda Siochana since the person’s release as to his suspected participation in the offence for which his arrest is sought. A person arrested under that authority shall be dealt with pursuant to section 4.”

Section 10(2) provides:-

“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.”

23. As can be seen, these provisions are very similar to the provisions in section 4 of the 1996 Act and are parallel to them. In both cases, the holding of someone in detention for investigation for an offence, which is an infringement of the right to liberty of a citizen, can only be carried out in serious circumstances. In addition to the safeguards that I have mentioned, there are quite a number of other safeguards against abuse of the power of detention provided for in both statutes. The main safeguard, which is contained both in section 10 of the 1984 Act and section 4 of the 1996 Act, is a safeguard against repeated detention by the Gardaí on the same offence without any new information having come to light. However, this is different from the situation which can arise where a person has been released from detention under section 4 of the 1984 Act or section 2 of the 1996 Act and at a later stage a decision is made by the Director of Public Prosecutions or by the Gardaí to charge that person with an actual offence. Section 10(2) of the 1984 Act and section 4(5) of the 1996 Act permit a further arrest for this purpose 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 or her before the Court and of initiating the procedures under the Criminal Procedure Act, 1967 which eventually will lead to his or her trial.

24. In this case, the Notice Parties had to be released because the order made by District Judge Windle was clearly invalid. One can compare it with the situation which arose previously when it was discovered that the orders of the Special Criminal Court remanding various persons in custody were found to be invalid because one of the Judges involved was no longer a Judge of the Special Criminal Court.

25. Subsequent to the release of the five Notice Parties, the Gardaí believed that they had enough evidence to charge them with offences under the Misuse of Drugs Act, 1977. They first arrested them on 18th November under section 25 of that Act, which permits arrest without warrant. Later, on 20th November, they arrested the first three Notice Parties pursuant to the warrants issued by Judge King. It was suggested that the District Judge believed that the Gardaí were acting mala fide in doing this. There was no evidence of any kind before this Court either that the Gardaí were acting mala fide or that the District Judge thought that they were acting mala fide. There was in fact nothing wrong with re-arresting the Notice Parties provided that they were immediately charged and brought before the Court. The situation where persons were found to be held in custody under an invalid order, were released, and were subsequently re-arrested has been considered and approved both by this Court and by the Supreme Court – see, for example, the judgment of the learned Geoghegan J. in Hegarty -v- The Governor of Limerick Prison (unreported 26th February, 1997). In Quinlivan -v- The Governor of Portlaoise Prison (unreported 7th November, 1997), the judgment of the Supreme Court, given by Barron J., upheld the same procedure. In that judgment, at page 14 of the report, the learned Judge stated:-

“The position in which the Applicant would have found himself but for the invalid order of the Special Criminal Court on the 16th October, 1996 was that he would have been in the lawful custody of An Garda Siochana until such time as his case could have been dealt with by a properly constituted Court. He appeared to have passed out of such custody, but once the administrative error was discovered, there was an obligation to ensure that he was returned to such custody so that he could be brought before a lawfully constituted Special Criminal Court. In the result, not only was it the positive duty of the Respondent to release the Applicant but at the same time it was his duty to see that he was restored to the custody of the Gardaí.

It follows that the Applicant was lawfully brought before the Special Criminal Court on the 7th November, 1996 and that following the order of that Court he is now in lawful custody.”

26. This judgment was given on 7th November, 1997, only a few days before the matter of the five Notice Parties came before District Judge Early. The judgment was attended with considerable publicity and I have no doubt that District Judge Early was aware of the decision. The evidence is that his decision was not based on the wrongfulness of re-arrest as such but on his particular interpretation of section 4 of the 1996 Act.

27. Having surveyed various statutory provisions outlined above and their purpose, I consider that the interpretation of section 4 of the 1996 Act adopted by the learned District Judge was in fact incorrect. The re-arrest provided for under section 4(1) is a re-arrest for further detention and questioning, and must be justified by new information. The arrest provided for in section 4(5) is of a completely different nature, being a normal arrest for the purpose of charging the person arrested before the District Court, of bringing the procedures of the Criminal Procedures Act, 1967 into being and eventually of bringing the accused person to trial.

OTHER CONSIDERATIONS ON JUDICIAL REVIEW
28. The next question that arises is whether the error made by the District Judge was within him jurisdiction or was not. It is perfectly possible for a District Judge to misinterpret a statute within the course of a trial and for that misinterpretation or other error to be within his jurisdiction, and therefore not amenable to judicial review. Here, however, the District Judge refused to exercise the basic jurisdiction of the District Court in criminal proceedings where the Notice Parties had been brought before the Court and a complaint made through the production of charge sheets and evidence of the fact that they had been charged with the offences. The Notice Parties were before the Court and the District Judge had jurisdiction to deal with the matter – see Attorney General (McDonnell) -v- Higgins [1964] I.R. 374 at 391 and State (Lynch) -v- Ballagh [1986] I.R. 203. The learned Judge based his said refusal on his incorrect interpretation of section 4 of the Criminal Justice (Drug Trafficking) Act, 1996.

29. It is also established law that it is not the task of the District Court to decide whether a person is held in a legal custody or not; this is the task solely of the High Court. In Keating -v- The Governor of Mountjoy Prison [1991] 1 I.R. 61, the Supreme Court (Finlay C.J., McCarthy J., O’Flaherty J.) held, as is stated in the headnote to the case that:-

“The District Court has no jurisdiction to inquire into the lawfulness of the detention of a person before it for the purposes of ordering that person’s release from custody; such jurisdiction was confined, under Article 40 of the Constitution, to the High Court.”

30. In his judgment, the learned Mr. Justice McCarthy allowed for a limited situation where a District Judge could discharge an accused from custody. At page 65 of the report, he stated:-

“I am far from saying that it is established in the present case that there was any illegality or any unconstitutional detention; there may be cases in which a District Justice in pursuance of his constitutional duty, having regard to some outrage committed upon a person brought before a District Court, would refuse to proceed as prescribed by the Criminal Procedure Act, 1967. Where, however, an issue is raised as to the validity of detention in Garda custody of a person brought before a District Justice, such issue touching, not upon the admissibility of evidence, but upon the actual validity of detention, the proper course for the District Justice is, as was done here, to remand the person concerned, thus enabling him to make such application to the High Court as he may be advised. If the High Court, or any Judge thereof, is satisfied that the detention is unlawful, it or he will direct the release of the person detained; if such release is not directed, then the statutory procedure under the Act of 1967 will be carried out. There is no question of the Court failing in its overriding duty. 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.”

31. It does not appear to me that the procedure which was adopted in the present case, which was in accordance with section 4 of the 1996 Act, was either an outrage or an affront to the constitutional role of the Court as described by the learned Mr. Justice McCarthy in his judgment. I therefore conclude that the error which was made by District Judge Early was not within his jurisdiction, and therefore is amenable to judicial review.

32. The final question which has to be decided is whether, given the discretion inherent in the judicial review procedure, I should refuse to make the orders sought.

33. This issue in regard to the interpretation of the 1996 Act is a publicly important issue which may very well effect quite a number of other people besides the Notice Parties in the present case.

34. Mr. Sammon, on behalf of Mr. O’Riordan, suggests that in my discretion I should refuse to make the orders because the case has been put together in a careless and confused manner by the State. I fully acknowledge that there were certain weaknesses in the presentation of the evidence and in the preparation of the case by the State. Perhaps not unexpectedly there was an element of over-hastiness in endeavouring to get the proceedings on as fast as possible. It does not appear to me however that the weaknesses in the way in which the State’s case was brought forward are sufficient to offset the desirability of quashing these orders which were made erroneously.

35. It was also suggested to me that it would have been preferable for the State to proceed by way of Case Stated, either under the Summary Jurisdiction Act, 1857 as extended or under section 52 of the Court (Supplementary Provisions) Act, 1961. Under the 1857 Act procedure (appeal by way of Case Stated), the proceedings must first be heard and determined. It does not appear to me that in this case proceedings have been heard and determined. In regard to the Consultative Case Stated procedure under the 1961 Act, the case must be stated by the District Judge in the course of the proceedings, whereas in the present case proceedings never really got under way. It seems to me doubtful that either Case Stated procedure would be available to the State in this case but it is not necessary for me to make a decision on this point. It was not a point that was pleaded in the statements of opposition and it was basically up to the Applicant Director of Public Prosecutions to make the choice as to what form of proceedings he should take.

36. As I have said, there were perhaps undesirable features in the State’s conduct of the proceedings but, given the importance of the legal question arising on the interpretation of section 4 of the 1996 Act, I do not consider it desirable to use my discretion to refuse the primary order sought. I will therefore make orders of certiorari in regard to the orders made by the District Judge both on the 18th November and on the 20th November, 1997 in accordance with paragraphs (D)(1) and (D)(2) of the statement grounding the application for judicial review. I would ask Counsel to address me on what course should be taken in regard to the orders effecting the fourth and fifth named Notice Parties who were not represented in Court before me.

37. With regard to the order of mandamus, I would agree with the submission of Mr. White that this appears to be somewhat premature. The parties can be re-arrested; there has been no effective judicial hearing of the allegations against them. There has been no discharge on the merits of the case, and there is no possibility of there being able to plead autrefois acquit. I feel sure that if they are arrested again, charged and brought before the Court in the normal manner, their cases will be properly processed by whatever District Judge they come before. I do not think that an order of mandamus is necessary at this point and I accordingly refuse to make that order.

Mr. McGuinness:
38. Your Lordship is making orders of certiorari in relation to all the orders made by District Judge Early on 18th and 20th November.

39. Mrs. Justice McGuinness:

40. Yes. With regard to the fourth and fifth named Notice Parties, they were not before the Court. I do not know whether you wish to make any submission about them, Mr. McGuinness?

Mr. McGuinness:
41. I would find it difficult to see how they could escape the consequences of the ruling of the judgment.

42. Mrs. Justice McGuinness:

43. That is probably true; if I am to make orders affecting the persons who remained and in all fairness were re-arrested and did not make efforts to escape, it would be quite unfair not to make similar orders affecting the persons who have so far evaded the service of the warrants that were issued and also of these proceedings. The orders of 18th November affecting the fourth and fifth named Notice Parties must also be quashed.

The People (Director of Public Prosecutions) v Michael Coffey

Central Criminal Court

26 March 1981

[1987] I.L.R.M. 727
(Hamilton J)

26 March 1981

 

HAMILTON J

delivered his ruling on 26 March 1981 saying: I have had an opportunity overnight of considering the application made by Mr MacEntee SC on behalf of the accused, Michael Coffey, that there is no evidence upon which a jury could hold that the accused, Michael Coffey, was not detained unlawfully, at Clondalkin Garda Station, between the hours of 6.50 p.m. on 2 March 1980 and 1.50 a.m. on the morning of 3 March 1980, and the submissions made by counsel on behalf of the accused and by counsel on behalf of the Director of Public Prosecutions, with regard to this issue.

It is obvious that in this case the question is as to whether or not the accused, Michael Coffey, was detained in Clondalkin Garda Station at the time he made the statement alleged to have been made by him, and sought to be introduced in evidence by the prosecution, because, as stated by the Chief Justice in The People v Walsh [1980] IR 294

It has been stated many times in our courts that there is no such procedure permitted by the law as “holding for questioning” or “detaining on any pretext” except pursuant to a court order or for the purpose of charging and bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of citizens. (at p. 299)

And that view is reinforced by Walsh J in the course of his judgment in The People v Shaw [1982] IR 1 where he stated:

No person may be arrested (with or without a warrant) for the purpose of interrogation or the securing of evidence from that person. If there exists a practice of arresting persons for the purpose of “assisting the police in their inquiries”, it is unlawful. In such circumstances, the phrase is no more than a euphemism for false imprisonment. (at p. 29)

Consequently, if, during the relevant period the accused was detained in Clondalkin Garda Station, such detention was unlawful, in breach of the accused’s constitutional rights, and, unless there were extraordinary excusing circumstances, any statement made or evidence obtained during the period of such detention is inadmissible in law.

As this is a criminal case the onus of proof is on the prosecution to establish, behond all reasonable doubt, that the accused was not in detention in Clondalkin Garda Station during the relevant period.

Before proceeding to deal with the relevant particular facts of this case it is desirable that I should refer to two statements of the law by which I consider I am bound. The first is the statement of law of Hanna J made during the course of his judgment in the well known case Dunne v Clinton [1930] IR 366, and that of Walsh J during the course of his judgment in The People v Lynch [1982] IR 64. The particular portion to which I refer is where Hanna J said [1930] IR 366, at p. 372:

In law there can be no half-way house between the liberty of the subject, unfettered by restraint, and an arrest. If a person under suspicion voluntarily agrees to go to a police  station to be questioned, his liberty is not interfered with, as he can change his mind at any time. If, having been examined, he is asked, and voluntarily agrees, to remain in the barracks until some investigation is made, he is still a free subject, and can leave at any time. (at p. 372)

I interpret that portion of his judgment as meaning that if a person, having made a statement which requires investigation by the Gardaí, is not asked to remain in the station while that investigation is being carried out, and if he does not voluntarily agree to remain in the station, he is in unlawful custody. The remainder of the judgment goes on to say:

But a practice has grown up of ‘detention’, as distinct from ‘arrest’. It is, in effect, keeping a suspect in custody… without making any definite charge against him, and with the intimation in some form of words or gesture that he is under restraint, and will not be allowed to leave. As, in my opinion there could be no such thing as ‘notional liberty’, this so-called detention amounts to arrest, and the suspect has, in law, been arrested and in custody during the period of his detention.

The other statement of law to which I must refer, and by which I consider myself bound, is the statement of law made by Walsh J during the course of his judgment in The People v Lynch [1982] IR 64 where he said:

If a person is asked to come to a garda station and he goes there voluntarily, he has been asked to come for some particular purpose to give assistance in the investigation of a crime, or for some other purpose. When he is subjected to interrogation of a nature which would suggest that he may well be a suspect in the case, or questioned or interrogated in circumstances which reasonably would give rise to that inference, he should be informed that he is free to leave at any time, unless and until he is arrested. (at p. 85)

It goes on:

Of course, if an intention has been formed to charge him, he must also be informed that he is not obliged to answer any questions. The necessity to be informed of his freedom to leave at any time arises from the fact that a person in a police station in connection with the investigation of a crime, even if he initially goes there voluntarily, is in an unaccustomed environment and finds himself the focal point of attention. He may very well reasonably assume that he is not free to leave until he is so told, and he may not venture to assert his belief in his right to leave. It was for similar reasons that in the Judges’ Rules the necessity to warn a person that he is not obliged to answer any questions was introduced. Generally speaking, nobody is obliged to answer any questions and, if one were to assume that everybody knows that that is the law, there would be no need for the warning; but practical experience has shown that there is a need for such a warning. In my view, the same should apply to persons who are invited to come to a garda station for the purpose of being questioned about an offence. They should be made aware that at all times they are free to leave until the point is reached when they are in fact not free to leave.

I accept the submissions of Mr Gaffney SC that this does not apply in all cases. It does not apply and cannot be required to apply in cases where  it is clearly established on the evidence that the person in the police station was fully aware of his rights; was fully aware of his right to leave if he so wished, but in consequence of that right voluntarily remained in the garda station. The onus is, however, on the State, in such a situation, to establish the fact beyond all reasonable doubt that the person in the station was fully aware of his rights and, in particular, fully aware of his right to leave at any time until he was arrested or told that he was not free to go.

Applying these statements of law which, as I stated I consider I am bound by, to the facts of this particular case, and to the facts that exist at this stage of the proceedings, I am satisfied that it is open to the jury to hold that Mr Coffey voluntarily went to the garda station when requested or invited to do so, just after 3 o’clock on the afternoon of 2 March and that he drove there in his car and was questioned by Detective Sergeant McElligott and Detective Garda Butler. In the station, at that time, he voluntarily subjected himself to the questioning and voluntarily gave an account of his movements during the relevant period for which information had been sought from him by two members of the Gardaí concerned. This interview concluded shortly after 4 o’clock. The two officers concerned left the interview room at approximately 4.05 p.m. for the purpose of checking the story and the account which had been given by the accused, Michael Coffey. When they left the interview room two other officers entered the room then for the purpose of questioning the accused Michael Coffey. At no stage between this time and the return of Detective Sergeant McElligott and Detective Garda Butler at about 6.30, was the accused left alone. Neither had he been asked to remain in the station while the Gardaí concerned were investigating the contents of the account which he had given of his movements during the relevant period. When Detective Sergeant McElligott and Detective Garda Butler returned, it appears clearly from the evidence of Detective Sergeant McElligott that he did not accept the account of the accused’s movements during the relevant period which the accused had given to him, and so informed him of it. In my opinion at this stage the accused had become a very real suspect in respect of the crime which was being investigated by the members of the Garda Síochána. And, applying the law as stated by Mr Justice Walsh, he should, certainly at that stage, have been told by the members of the Garda Síochána that he was free to go, if he so wished.

There is nothing in the evidence to suggest, and certainly no evidence which would satisfy the jury beyond all reasonable doubt, that the accused was aware of his rights and was aware of the fact that he was free to go. The actions of the Garda Síochána, established in this case, in the terms of the statement of Hanna J ‘the intimation in some form of words or gesture that he is under restraint and will not be allowed to leave’.

At no stage from the time that Mr Coffey arrived at the station in Clondalkin was he free from the care and attention of the members of the Garda Síochána. They were with him at all times, and at 6.50 p.m. approximately, Detective Garda Butler asked for and received from him the keys of his car.

At no stage were the keys returned to him and this fact, in conjunction with the constant care and attention by members of the Garda Síochána, and the constant interviewing and questioning of him, would indicate to him that he was not free to leave. This continued right up to the time that he was questioned by Detective Sergeant Dunne and Sergeant Connolly. At no stage had any indication been given to him that he was free to leave the garda station. It is irrelevant that he did not ask to leave; it is irrelevant that the members of the Garda Síochána concerned who gave evidence said if he had asked he would have been allowed to leave; the point is that he did not ask and at no stage was he informed that he was free to leave.

In these circumstances, in my opinion, applying to the facts of this case the law which I have referred to, under no circumstances would it be open to the jury to hold that during the relevant period the accused was not in detention, and I propose to direct them to answer ‘Yes’ to the question which I have decided should be before them, in accordance with the direction contained in the judgment of the Supreme Court in The People v Lynch.

Now, that being so, and there being no evidence of any extraordinary excusing circumstances, the statement would appear to be inadmissible. Mr McGOUGH : Well my lord, I would like to refer you to the Chief Justice in The People v O’Loughlin [1979] IR 85, where the only delay in charging him was occasioned by the necessity to check the information given to the Garda Síochána.

Hamilton J : Mr McGough, I have ruled that I am directing the jury to answer the question ‘Yes’: that being so, the accused was in unlawful custody and the statement would only be admissible if there were any extraordinary excusing circumstances and I do not think there were any, as I say, and beyond the Lynch case, the law was laid down in Dunne v Clinton [1930] IR 366. Is there any other evidence to go to the jury other than the statement?

Mr McGOUGH : No my lord.

Hamilton J : That being so, I am about to ask the jury: I will direct them to answer ‘Yes’ to the question, and, there being no further evidence, I will direct them to find the accused ‘Not guilty’.

Mr McGOUGH : May it please your lordship.

(11.10 A.M. THE JURY RETURNED) ,

Hamilton J : All right. Mr Foreman, during your absence I had to deal with a number of matters of law, particularly dealing with the question which I told you you would have to decide, as to whether the accused, Michael Coffey, was in detention at a particular period in Clondalkin Garda Station, you having heard the evidence in this respect, and I have heard submissions made by counsel on behalf of Mr Coffey and on behalf of the Director of Public Prosecutions and, purely on a legal basis, ladies and gentlemen, I have held – and it is my responsibility, not yours – that the only answer that you should give to this question is ‘Yes’, he was in detention, and I am directing you now, as a matter of law, for which I have the sole responsibility in law, that your answer should be ‘Yes’ and by direction and I so rule.

O’Driscoll v Governor of Cork Prison

[1989] ILRM 239 Lynch J
I

The applicant presented himself at the warrant office in the Courthouse Cork at 9 a.m. on 1 July 1987 for the purpose of being taken into custody to commence serving the said sentences of three months’ imprisonment. The warrants for his arrest and detention in prison had not yet issued and accordingly the applicant was not taken into custody on that occasion. The applicant therefore returned to his home in Cork City and remained in that city thereafter but made no attempt subsequently to report again to the relevant authorities nor did he make any inquiries as to when he might surrender and be taken into custody to serve his sentence of imprisonment. The two warrants were executed by members of the Garda Siochana on 30 September 1987 and the applicant was taken into custody and lodged in Cork prison for the purpose of serving the said sentences of imprisonment.

The applicant has challenged the execution of the warrants as being unlawful having regard to the terms of the order of the Circuit Court and the delay which elapsed from 1 July to 30 September 1987 in executing the warrants. It is not clear if the applicant is contending that the warrants had to be executed and the applicant taken into custody and lodged in prison on 1 July 1987 or not at all. The submissions on behalf of the applicant and especially the statement grounding the application in the proceedings Record No. 1987/542 SS seem to suggest such a contention without positively making it. The applicant is positively contending that the delay between 1 July and 30 September was such that the execution of the warrants as late as 30 September 1987 would be unjust and unfair and should not be permitted.

I have no doubt whatsoever but that the learned Circuit Court judge never intended that imprisonment was to commence only on 1 July 1987 or not at all. Nor have I any doubt but that the requirement by the learned Circuit Court judge of the undertaking from the applicant that he should surrender at 9 a.m. on 1 July 1987 was for the benefit and in ease of the State authorities not the applicant in order to save the State the trouble and expense of seeking out the applicant to arrest him on foot of the warrants. I am quite satisfied that the written order as drawn up and engrossed accurately reflects the true intentions of the learned Circuit Court judge in giving his judgment orally in court whatever may have been the precise words used.

The fact of the matter was that the applicant observed the letter of his undertaking that he would surrender to the relevant authorities at 9 a.m. on 1 July 1987 but breached the spirit of that undertaking in making no further enquiry whatsoever as to when he might surrender and be taken into custody and thus he put the State to the trouble and expense of seeking out the applicant to execute the warrants which was precisely what the learned Circuit Court judge wished to avoid when he acceded to the applicant’s plea to postpone the commencement of the imprisonment and required the applicant to give the undertaking referred to. The applicant now complains that the delay in executing the warrants until 30 September 1987 is unjust and unfair especially as it would involve his being in prison for Christmas 1987. If that is his main complaint he himself could easily have avoided such consequences by observing the spirit of his undertaking and making enquiries about surrendering later in July or at any time in August or early September 1987. The evidence for the respondents shows that the warrants were engrossed and became available on 2 July 1987 and the evidence also shows quite clearly that the delay from 1 July to 30 September 1987 in executing the warrants was due to administrative rearrangements and was not in any way motivated by an intention or desire to make the imprisonment bear more harshly upon the applicant.

I am satisfied that there is no substance in the applicant’s challenge to the validity of the order of the learned Circuit Court judge as drawn up and engrossed and I refuse the relief sought in the proceedings Record No. 1987/340 JR

The two warrants as drawn up and engrossed erroneously refer to the order of the Circuit Court as being made on 10 June 1987 whereas it was in fact made on 27 May 1987. The date 10 June 1987 was the date on which the order of the Circuit Court was drawn up and engrossed. The warrants correctly reflect the order of the Circuit Court as made on 27 May 1987 and the clerical error as to the date of the Circuit Court order does not adversely affect the applicant in any way whatsoever and is not therefore a reason for quashing the warrants.

I am also satisfied that the warrants as drawn up and engrossed do not confer an unfettered discretion on the executive as to when the imprisonment will commence. The warrants must be executed within a reasonable time and in the circumstances of this case I am satisfied that there was no unreasonable delay on the part of the State authorities and that the warrants were accordingly executed within a reasonable time.

The submission that the warrants are bad because they are dated 2 July 1987 and are for execution from 1 July 1987 is without substance. The warrants are for execution not earlier than the 1 July 1987 and the fact that they are dated 2 July 1987 does not in any way affect their validity.

I am accordingly satisfied that there is no substance in the challenge to the validity of the warrants as drawn up and engrossed and I refuse the relief sought in the proceedings Record No. 1987/542 SS

In the result therefore I reject the various contentions put forward by the applicant in both sets of proceedings and I refuse the applications made herein.

 

Director of Public Prosecutions v. Bradley

High Court, December 9, 1999JUDGMENT of Mr. Justice McGuinness delivered the 9th day of December 1999.

This is a Consultative Case Stated pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act, 1961 by Judge Desmond Hogan of the District Court. The learned Judge sets out the facts of the case as follows:-

“1. At the sitting of the Dublin Metropolitan District Court held at Court No. 46 the Bridewell, Chancery Lane, in the City of Dublin on the 19th December 1997, the Accused herein appeared before me on Finglas Charge Sheet 95 of 1997 which said Charge Sheet alleged that the Accused on the 23rd day of October 1997 assaulted one,Garda Des McTiernan (the Prosecutor herein) contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997.

2. At the said hearing the Accused was represented by Catherine Staines, Solicitor in the office of Michael J. Staines and Company Solicitors. Garda Des McTiernan, the Prosecutor on that date, represented himself. Garda Des McTiernan was the only witness called by the Prosecution at the trial of the alleged offence.

3. Garda McTiernan gave evidence that as a result of a call he received while on mobile patrol at approximately 12.30 a.m. on the 23rd October 1997 in the Finglas West area he went to Cappagh Road. He said that he saw the Accused at the gateway to No. 370 Cappagh Road.Garda McTiernan stated that he made an effort to speak to the Accused about complaints of noise that had been made. The garda then stated that the Accused became very abusive and eventually threatened Garda McTiernan with a cavity block. Garda McTiernan said that fearing for his own safety and those with him he left the situation as it was. Garda McTiernan also gave evidence that he came back to 370 Cappagh Road a short time later on the same night with garda assistance. The Accused was still very abusive and Garda McTiernan again withdrew. Garda McTiernan said that on the 29th October 1997 he arrested the Accused for the offence of assault contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997. The Accused was then charged and brought before the District Court.

4. At the conclusion of the prosecution case, Catherine Staines, Solicitor for the Accused, submitted that there was no power of arrest for an offence contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997. Catherine Staines further submitted that as the arrest was unlawful there had been an infringement of her client’s constitutional rights and that the Court should protect such rights. The prosecution submitted that the Criminal Law Act, 1997 granted a general power of arrest. It was argued by Ms Staines on behalf of the Accused that Section 4 of the Criminal Law Act, 1997 only permitted arrest without warrant for an offence for which a person may be punished by imprisonment for a term of 5 years or more. Section 2(1)(b) does not carry such a penalty. I then directed that the case be put back for further legal submissions.

5. The case came before me for further legal argument on the 23rd day of January 1998 and the 24th day of February 1998. At that time the Director of Public Prosecutions was represented by Mr. Mulholland, Solicitor. The Defendant was represented by Ms Bambury. The prosecution accepted the argument made by Ms Bambury that the provisions of the Criminal Law Act, 1997 did not grant power of arrest for an offence under Section 2 of the Non Fatal Offences Against the Person Act, 1997. Mr. Mulholland for the Prosecutor then submitted that the question of whether there was a lawful arrest was immaterial to the hearing before me. The prosecution relied upon the decision of the Supreme Court inThe Director of Public Prosecutions v. Michael Delaney (O’Flaherty J. nem diss) 27th November 1997. It was submitted that the said case was authority for the proposition that unless the validity of the arrest is an essential ingredient in proving the charges brought, then the nature of the arrest is irrelevant to what the District Judge must decide. In reply, Ms Bambury for the Accused said the District Judge had an obligation under the Constitution to vindicate the constitutional rights of an accused person and that the accused person had to appear before the Court in accordance withdue process of law. Ms Bambury relied upon the High Court decision of Mrs Justice Denham in the case of Coughlan v. Patwell [1992] ILRM 808. It was submitted that the latter case was authority for the proposition that where an accused person alleges that his constitutional rights have been infringed in procedures adopted in bringing him before the District Court, then the District Judge is obliged to hear the Accused’s allegations and submissions and take such steps as are considered appropriate. The Accused first appeared before the Court on 29th October, 1997.

6. I stated that I was of the view that what was stated in the Delaney case was obiter (an observation with which Mr. Mulholland disagreed). I noted that in the case of The DPP v. Delaney, above cited, the case of Coughlan v. Patwell, above cited, did not appear to be considered by the Supreme Court. I was of the view that although the Supreme Court decision was the binding decision, a difficulty arose in its interpretation and application insofar as the decision in Coughlan v. Patwell did not appear to have been considered by the learned Supreme Court. I had a difficulty in resolving how to exercise my constitutional duties as outlined by Mrs Justice Denham in Coughlan v. Patwell with the decision of the Supreme Court in the DPP v. Delaney. In those circumstances I consider that the opinion of the High Court should be sought for the purpose of resolving those divergent authorities”.

The learned Judge then submits the following question to this Court:-

“Where it is alleged that the constitutional right to liberty of a person accused of an offence contrary to Section 2(1)(b) of the Non Fatal Offences Against the Person Act has been violated in the procedures adopted in bringing him before the District Court, in circumstances where proof of a valid arrest is not an essential ingredient in proving the charge, am I, a Judge of the District Court, entitled, for that reason, to dismiss the charge accordingly?”

 

1. At the hearing before me it was accepted by Counsel (a) that proof of a valid arrest is not an essential proof under Section 2(1)(b) of the Non Fatal Offences Against the Person Act, 1997, (b) that there is no power of arrest without warrant for an alleged offence under this section, and (c) that no power of arrest without warrant for such an offence is conferred by Section 4 of the Criminal Law Act, 1997 since the definition of an arrestable offence under that section is “an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence”. It is thus common case that Garda McTiernan did not have a power of arrest and that consequently the purported arrest was unlawful.

2. Counsel for the Accused, Mr. O’Connor, submitted that the unlawful arrest by Garda McTiernan was a flagrant breach of the Accused’s constitutional right to liberty under Article 40.4.1. He also referred to Article 38.1 “No person shall be tried on any criminal charge save in due course of law” and submitted that “due course of law” included and encompassed the pre-trial investigative process and procedures prior to the hearing of the criminal trial. He referred to the judgment of Denham J. in the High Court in Coughlan v. Patwell [1992] ILRM 809 where the learned Judge stated at page 812:-

“The District Court is a Court established under the Constitution and its judges uphold the law on the Constitution. Its jurisdiction is a limited jurisdiction. But within that jurisdiction it acts in accordance with the Constitution”.

3. He referred also to the cases of Trimbole v. The Governor of Mountjoy Prison [1985] IR 550 and The People (Director of Public Prosecutions) v. Mark Kenny [1990] 2 IR 110.

4. Mr. O’Connor pointed out that Garda McTiernan had available to him the power to arrest the Accused on the two previous occasions when he was abusive and threatening and thereby creating a breach of the peace. He had neglected to do so and had deliberately and unlawfully arrested him six days later.

5. Mr. Collins, on behalf of the Director of Public Prosecutions, submitted that at least since 1955, in the case of State (Attorney General) v. Fawcitt [1955] IR 39, the Supreme Court had consistently held that the jurisdiction of the District Court to embark on any criminal proceedings was not affected by the fact that the accused had been brought before the Court by an illegal process. He referred to thejudgment of O’Flaherty J. in Director of Public Prosecutions v. Delaney [1997] 3 IR 453, but pointed out that the latest re-statement of this settled principle was to be found in Director of Public Prosecutions (at the suit of Garda John Ivers) v. Angela Murphy [1999] 1 ILRM 46 and in particular in the judgment of Keane J. in that case. He submitted that the facts in the present case were quite unlike the graphic facts in Trimbole’s case. The Kenny case dealt with the admissibility of evidence obtained as a result of an invalid search warrant, which was a completely different issue.

As far as Coughlan v. Patwell was concerned, he argued that the issue decided in that case was that a Judge of the District Court acts in excess of jurisdiction where he or she refuses to allow an accused person to make any submission in relation to an alleged breach of constitutional rights and refuses to listen to such a submission. The learned Judge did not statethat where an accused person alleged that there had been a breach of his or her constitutional rights, the District Court should proceed to dismiss the complaint itself. What she decided was that, where such a submission is made, it should be heard and appropriate steps taken with regard to it. In the present case, the learned Judge Hogan had acted entirely correctly within the terms of Denham J’s judgment in hearing evidence and submissions and in stating a case for this Court.

THE LAW

In DPP v. Delaney the learned O’Flaherty J., giving judgment on behalf of the Supreme Court, stated (at page 457):-

“It appears that the submissions made in the District Court and also in the High Court and, to a degree, in this Court proceeded on the basis that the matter of arrest had some relevance to the charges here.

Whether an arrest is illegal nor not can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge, such as under Section 49 of the Road Traffic Act, 1961, as amended (driving with excess alcohol); see, for example,Director of Public Prosecutions v. Forbes [1993 ILRM 817. It was not necessary in the case of any of the charges brought against these appellants to prove a lawful arrest”.

6. The learned Judge went on to deal with a number of what he described as “recondite points” which had been debated in the District Court and in the High Court, but it is clear that he felt them to be largely irrelevant, since he concluded his judgment by saying (at page 461):-

“It will be clear from what I have stated in the course of this judgment so far that these points are of no relevance to what the learned District Judge has to decide. This is because, as already related, proof of arrests, the validity of which arrests might have been vitiated if there was a breach of the Constitution, was not an essential ingredient to prove the charges brought and, in any event, provided the District Judge is satisfied that Sergeant McGrath was acting bona fide in the belief that he should enter the premises to safeguard life and limb, then there was no breach of the Constitution”.

7. It seem to me that Judge Hogan erred in stating, as he did in the District Court, that the first-quoted remarks of O’Flaherty J. were obiter; they were in fact the main ratio of the decision. This is reflected in the official report of the case in the Irish Reports where the primary matter held by the Supreme Court is summarised in the head note:-

“1. That whether an arrest was illegal or not, could only be of relevance where proof of a valid arrest was an essential element to ground a charge”.

8. The judgment of Keane J. in DPP (Ivers) v. Murphy seems to me to set the matter out with the utmost clarity. He states (at page 61):-

“It has been repeatedly pointed out that, as a general rule, the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. If I refer to ajudgment which I delivered in Killeen v. Director of Public Prosecutions [1997] 3 IR 218, it is simply because, so far as I am aware, it is the latest re-statement of that well settled principle. I said (at page 228/9-10:

‘It can, in general, be said that the jurisdiction of the District Court to embark on any criminal proceeding, including the holding of a preliminary examination, is unaffected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. This was so held by Davitt P. inState (Attorney General) v. Fawcitt [1955] IR 39 at page 43 where he said:

“The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons, but neither of these methods is essential. 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 he is brought there by an illegal process, the Court’s jurisdiction is nonetheless effective”.

Some qualifications to that general principle may be noted in passing. Firstly evidence obtained from the accused person during the course of a detention which proves to be unlawful, whether because of a defective warrant or for some other reason, may subsequently beexcluded as inadmissible by the Court of trial. Secondly, where 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 State (Trimbole) v. Governor of Mountjoy Prison [1985] IR 550, the Court may be justified in refusing to embark upon the hearing. There may also be cases in which a question is raised as to the validity of the detention in Garda custody of a person brought before the District Court, in which case the appropriate course is to remand the person concerned, enabling him, if he wishes so to do, to apply to the High Court for an Order of Habeas Corpus. (See the observations of McCarthy J. inKeating v. Governor of Mountjoy Prison [1991] 1 IR 61). None of these considerations arise in the present case’.

Neither do they arise here. That, in my view, is sufficient to dispose of the present case”.

 

9. It is, as was pointed out by Counsel for the Director of Public Prosecutions, notable that the learned Keane J. uses the term “graphic” to describe the facts of Trimbole’s case. The circumstances in the instant case are very far removed from such a deliberate and conscious violation of constitutional rights. I am, of course, aware that the term “deliberate and conscious” does not necessarily involve mala fides; however, on the facts as set out in the Case Stated, it seems unlikely that the unlawful arrest in this case would require the Court to refuse to embark on the hearing. Ultimately, however, as was held by Denham J. inCoughlan v. Patwell, this is a decision for the Judge of the District Court. Denham J. states at page 814:-

“If an individual as here alleges that his constitutional rights have been infringed in procedures adopted in bringing him before the Court, then the District Court has jurisdiction to, and indeed should, hear the submission and take such steps as it considers proper. It is not appropriate for a District Court to refuse to allow such a submission to be made to the Court. It may be that the District Justice on hearing the submission would have a very clear picture and could deal with the matter there and then. It may be that the District Justice would take the view that there should be a full submission after evidence is heard in the trial. It may be that the District Justice would take evidence and state a case”.

 

10. The learned Judge Hogan clearly acted correctly in hearing both evidence and submissions and in stating a case for this Court. It remains for him to decide whether or not to dismiss the case, but this is a decision which he should make in the light of the general rule, as set out by Keane J., that the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact, if it be the fact, that the accused person has been brought before the Court by an illegal process. Only if he feels that there has been a deliberate and conscious violation of the Accused’s rights, as in Trimbole’s case, should he decline to embark on the hearing.

11. The answer, therefore, to the learned Judge’s question to this Court is a qualified affirmative. Yes, he is strictly speaking entitled to dismiss the case, but only if he considers that, on the evidence before him, it falls within the parameters of the decision of the Supreme Court in DPP (Ivers) v. Murphy.

DPP v Pires

[2018] IESC 51JUDGMENT of Ms. Justice Dunne delivered the 23rd day of October, 2018
1. This is an appeal by Mr. Pires, Mr. Corrigan and Mr. Gannon (hereinafter referred to as the Appellants) from a decision of the Court of Appeal (Mahon J., Sheehan and Edwards JJ. concurring) of the 21st December, 2016 dismissing the Appellants’ appeal against a judgment of the High Court (Barrett J.) of the 9th July, 2015.

2. In a series of determinations dated the 31st July, 2017, this Court granted leave to appeal to the Appellants in respect of the following two issues:

“(a) Did the High Court and Court of Appeal correctly apply the scope and principles contained in s.2 of the Summary Jurisdiction Act, 1857, as amended?
(b) Did the High Court and Court of Appeal correctly apply the law as decided in DPP v. Cullen ?”

3. It is necessary to set out the background and procedural history of these cases in order to understand how the issues in respect of which leave was granted have arisen.

Background and procedural history
4. The genesis of these cases, while unconnected to each other in any material sense, arises from three appeals to the High Court by way of case stated from Judge Bryan Smyth, a judge of the District Court, on 20th March, 2015, pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961, (hereinafter referred to as the Act of 1857) on a point of law. The three cases concerned prosecutions for offences contrary to ss. 4(4)(b) and (5) of the Road Traffic Act 2010.

5. A summary of the factual circumstances in relation to each of the Appellants is to be found in the judgment of the Court of Appeal and it would be helpful in order to spell out the nature of the issues that arises to quote from that summary as follows:

“Mr. Pires
Mr. Pires was stopped at Fortunestown Road in Tallaght on 1st January 2014 on suspicion of drink driving. Gda. Brady handcuffed Mr. Pires while effecting his arrest. Gda. Brady told the District Court that he did so because Mr. Pires was intoxicated, was larger in stature than he was, he was on his own with him, and he had to transport him in a garda vehicle without an internal protective barrier. There was no evidence that Mr. Pires was aggressive or agitated at any time.

Mr. Corrigan

Mr. Corrigan was stopped at Finglas Road dual carriageway on 28th May 2014 by Gda. Murphy, his attention having been drawn to Mr. Corrigan when his vehicle collided with another vehicle at a roundabout. Having formed the necessary opinion as to the consumption of an intoxicant, Mr. Corrigan was arrested and taken to Finglas garda station. While effecting arrest, Gda. Murphy handcuffed Mr. Corrigan because he was ‘jittery’. He also said that the appellant hesitated when he placed his hand on Mr. Corrigan to usher him into the back of the patrol car. Mr. Murphy accepted that Mr. Corrigan was not aggressive and was co-operative. He was nevertheless concerned that Mr. Corrigan might become overwhelmed and react in panic because of the position he found himself in. He was also concerned that they were on a busy dual carriageway and that he had a duty of care to ensure the safety of the appellant and the public. He also had to convey Mr. Corrigan to a garda station in a garda patrol car which had no internal protective barrier. He said that he had applied the handcuffs for his own safety and that of the appellant.

Mr. Gannon

Mr. Gannon was stopped on the M50 in Blanchardstown in Dublin on 21st October 2013. Gda. Kelly (sic) told the District Court that he had noticed the appellant driving his Ford Focus van at excessive speed as it overtook a garda jeep in which he was a passenger. Mr. Gannon was travelling at one hundred and thirty kmH. The necessary opinion as to intoxication was formed when Mr. Corrigan was stopped by the gardaí and he was handcuffed in the course of effecting arrest. Gda. Kenny told the District Court that he was handcuffed for his own safety, for the safety of the gardaí and the safety of other road users as they were standing on the hard shoulder of the M50 which was very busy at the time. It was accepted that Mr. Gannon was compliant and was not aggressive.”

Judgment of the High Court
6. First of all it is necessary to look at the conclusions of the learned trial judge as to the scope of s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961 and to that end, it would be useful to set out the relevant statutory provisions.
7. Section 2 of the Act of 1857 provides that:

“After the hearing and determination by a justice or justices of the peace of any information or complaint, which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law to be named by the party applying; and such party, herein-after called the appellant, shall, within three days after receiving such case, transmit the same to the court named in his application, first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding in which the determination was given, herein-after called the respondent.”
Section 51 of the Act of 1961 provides at subs. (1) as follows:
“Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the court) if dissatisfied with such determination as being erroneous on a point of law, to apply in writing within fourteen days after such determination to the said justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court.”
The jurisdiction of the High Court is provided for in s. 6 of the Act of 1857 as amended and it provides that:
“[The High Court] shall hear and determine the question or questions of law arising thereon and shall thereupon reverse, affirm or amend the determination in respect of which the case has been stated, or remit the matter to the justice or justices with the opinion of the Court thereon, or may make such other order in relation to the matter, and may make such orders as to costs as to the Court may seem fit; and all such orders shall be final and conclusive on all parties . . .”
8. The learned trial judge reviewed a number of decisions of the High Court and the Supreme Court in relation to the jurisdiction of the High Court in an appeal by way of case stated. Thus, he referred to the decision in the case of Clune v. DPP and Ors . [1981] I.L.R.M. 17, Fitzgerald v. DPP [2003] 3 IR 247, DPP v. Nangle [1984] I.L.R.M. 171, DPP v. Noonan (Unreported, High Court, Ó’Caoimh J., 16th December, 2002), culminating with a decision in the case of DPP v. Dardis [2015] IEHC 53 in which Hedigan J. applied the decisions in Fitzgerald and Nangle . Hedigan J. in that case pointed out the limited nature of appeals brought under s. 2 of the Act of 1857:
“This is a procedure exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it. See The Director of Public Prosecutions v. Nangle [1984] I.L.R.M. 171. It is confined to a party who is ‘dissatisfied with the said determination as being erroneous in point of law’. It is not available therefore to a party dissatisfied with the decision of the District Court on the grounds that the District Court Judge has taken one view rather than another of the evidence or has accorded credence to one witness and withheld it from another. See Fitzgerald v. The Director of Public Prosecutions [2003] 3 IR 247.”
The learned trial judge further noted that Hedigan J. said at p. 8 of his judgment that the Court could not intervene even if it were to disagree:
“It seems to me that this was a finding of fact reasonably made by a trial judge who had heard all the evidence and concluded [that the detention] in the circumstances herein was unjustified. It is not an error of law but an alleged error of factual analysis that is presented by the prosecution to this court. Thus on the principles enunciated above, I cannot intervene even if I were to disagree with the District Judge. The court has a limited jurisdiction only to correct errors of law.”
9. Accordingly, the learned trial judge concluded, having reviewed the authorities referred to above, that:
“In summary, the task of the High Court in an appeal such as that now before the court is a very limited one. This is implicitly recognised in the very succinct question put by the learned District Judge in the case stated in respect of each of the three acquittals now before the court, namely “Was I correct in law to find the arrest of the accused unlawful?”
Thus, the position in relation to the scope of an appeal by way of case stated was identified from the authorities referred to above by the learned trial judge.
10. The learned trial judge then considered the central issue in the case stated, namely whether the District Judge was correct in law to find that the arrests of the Appellants were unlawful. He identified fourteen principles derived from the majority judgment of this Court (Fennelly J.) in DPP (Moyles) v. Cullen [2014] IESC 7 which he viewed as being necessary to consider. It would be helpful to refer to those principles as set out by the learned trial judge as follows:

” A. Use of Reasonable Force when making Arrest

(1). The power of arrest may only be exercised with the use of such force as is reasonable in all the circumstances. (Fennelly J., paras.17, 38).

B. Judgment of Gardaí as to Reasonable Force

(2). An arresting Garda makes a judgment as to what force is reasonable in the circumstances. The law allows a generous measure of judgment in this regard. (Fennelly J., paras. 17, 38).
(3). An error of judgment by a Garda in applying force s/he genuinely believes necessary will neither (i) render the arrest invalid, nor (ii) expose the officer to civil or criminal liability. (Fennelly J., para. 17).

C. Application of Handcuffs

(4). Every Garda is entitled, and may be obliged, to apply handcuffs to an arrested person where s/he genuinely believes that necessary in the particular case. (Fennelly J., para. 25).
(5). The decision as whether (sic) or not to apply handcuffs must be left to the individual Garda dependent on his or her own appreciation of the requirements of the individual case. (Fennelly J., para. 25).

(6). When a Garda is considering whether to apply handcuffs, the following factors must be taken into account: (i) the nature of the offence; (ii) the prevailing circumstances; and (iii) the ‘BCDP’ (behaviour, character, demeanour, personality) of the individual to be cuffed. (Fennelly J., paras. 25, 38).

(7). A realistic latitude is shown by the law to the Gardaí in this regard. (Fennelly J., para. 25).

(8). Despite the generous measure of judgment allowed, and the realistic latitude shown, to an arresting Garda, circumstances may present in which a court later determines that particular handcuffing was unlawful. Because of the generous measure of judgment allowed, and the realistic latitude shown, to the arresting Garda, such circumstances should be uncommon. The ‘blanket policy’ of cuffing applied in Cullen is an example of the uncommon. (Fennelly J., paras. 25, 38, 40).

D. Courts slow to review

(9). Ordinarily, the courts are slow to review operational decisions of individual Garda officers made in the wide range of situations which they confront in the course of their duty. (Fennelly J., para. 25).
(10). In the extraordinary event of a review, the effect of Principles (2) and (7) is that even though the test of reasonableness is objective, it allows a generous measure of judgment and a realistic latitude to the arresting Garda.

E. General observations on lawful arrest and detention

(11). A lawful arrest is a pre-requisite to the authority under road traffic legislation to make lawful demand that a suspect provide samples of blood, urine or breath. (Fennelly J., paras. 33, 35).
(12). An arrest may be invalid if, in the absence of lawful authority or consent of the owner, it is carried out on private property. (In the road traffic context, lawful authority presents under s.7 of the Road Traffic Act 2010). (Fennelly J., para. 35).

(13). A detention originally lawful can become unlawful where a suspect is held in detention without justification. (Fennelly J., para. 35).

(14). Public depiction of any person, but particularly an unconvicted prisoner, in handcuffs, is a depiction of that person in a position of humiliation and indignity. (Fennelly J., para. 39). However, if this Court might add a gloss that seems implicit in Cullen , the public handcuffing of an individual, in and of itself and without other circumstances presenting, will not render an arrest unlawful.”

11. Having regard to the principles thus identified, the learned trial judge considered that the District Judge was not correct to find that the arrest of the accused was unlawful in each of the Appellants’ cases. He concluded that the reasoning of the District Judge in reaching his conclusion contravened one or more of the principles identifiable in the judgment of Fennelly J. in Cullen set out previously. He then proceeded to identify in particular those principles which he found to have been contravened. Again it would be useful to set out precisely the conclusions of the learned trial judge in this regard:
“40. Principle No. (2). An arresting Garda makes a judgment as to what force is reasonable in the circumstances. The law allows a generous measure of judgment in this regard.
It appears to the court that in breach of the applicable law, as identified in Cullen, an insufficiently generous measure of judgment was afforded by the learned District Judge to the arresting Gardaí in each of the appeals now presenting.

41 . Principle No. (6). When a Garda is considering whether to apply handcuffs, the following factors must be taken into account: (i) the nature of the offence; (ii) the prevailing circumstances; and (iii) the ‘BCDP’ (behaviour, character, demeanour, personality) of the individual to be cuffed.

Principle No. (7). A realistic latitude is shown by the law to the Gardaí in this regard.

It appears to the court that, in breach of applicable law, as identified in Cullen , insufficient latitude was afforded by the learned District Judge to the arresting Gardaí in each of the appeals now presenting.

42. Principle No. (8). Despite the generous measure of judgment allowed, and the realistic latitude shown, to an arresting Garda, circumstances may present in which a court later determines that particular handcuffing was unlawful. Because of the generous measure of judgment allowed, and the realistic latitude shown, to the arresting Garda, such circumstances should be uncommon. The ‘blanket policy’ of cuffing applied in Cullen is an example of the uncommon.

The regularity with which the learned District Judge found handcuffing to be unlawful (on 3rd March, 20th March, and 28th May, 2014, in the three appeals presenting) suggests to the court that in breach of applicable law, as identified in Cullen , the learned District Judge had insufficient regard to the uncommonness of the situations in which handcuffing will in practice be found to be unlawful.

43 . Principle No. (9). Ordinarily, the courts are slow to review operational decisions of individual Garda officers made in the wide range of situations which they confront in the course of their duty.

The regularity with which the learned District Judge found handcuffing to be unlawful (on 3rd March, 20th March, and 28th May, 2014, in the three appeals arising) suggests to the court that in breach of applicable law he had insufficient regard to the slowness with which the courts will tend to review operational decisions of individual Gardaí.

12. For the reasons set out above the learned trial judge answered the question posed in the case stated as “No”.
The judgment of the Court of Appeal
13. The Court of Appeal (Sheehan, Mahon and Edwards JJ.) in the judgment of Mahon J. delivered on the 21st December, 2016 first of all considered the judgment of this Court in the case of Cullen . Insofar as the principles to be derived from that judgment were identified by the learned trial judge, the Court of Appeal agreed with the principles so identified. Having pointed out that a judge of the District Court is bound to follow and apply the jurisprudence of the Superior Courts unless the case is one which is distinguishable from that jurisdiction, the Court of Appeal went on to consider the nature of the case stated procedure. Reference was made in that context to the decision in the case of DPP v. Nangle [1984] ILRM 171, Rahill v. Brady [1971] I.R. 69 and Fitzgerald v. DPP [2003] 3 IR 247. The Court of Appeal concluded that the case stated procedure was appropriate as “a failure on the part of a judge of the District Court to follow and apply correctly a binding precedent, where that jurisprudence leaves no room for uncertainty or ambiguity, renders the District Court judge’s decision amenable to review by the Superior Courts on a point of law”.

14. The Court of Appeal then took the view that the learned District Judge had erred in the application of the principles to be found in Cullen . In para. 26 of the judgment Mahon J. stated:

“26. Therefore when the District judge came to assess the appropriateness or otherwise of the use of handcuffs in the three cases before him he was required to apply a test of primarily subjective rather than objective reasonableness. He was not concerned with whether the man on the Luas would consider that the use of handcuffs was necessary. Rather he needed to be satisfied in each instance that the arresting Garda had made a genuine, albeit subjective, assessment as to what the exigencies of the situation required, and had acted on the basis of that assessment and not on foot of some blanket policy to use handcuffs. If he was satisfied that the Garda had arrived at a judgment in good faith that the use of handcuffs was required, then it mattered not whether the judgment arrived at was objectively reasonable. The enquiry mandated by Cullen is limited to an assessment of whether the garda officers acted with subjective reasonableness and not on the basis of a blanket policy as had in fact occurred in that case. Of course, the presence or absence of objectively reasonable grounds is a matter that can be taken into account in assessing the genuineness of a Garda’s belief. However, that was not the learned District Judge’s approach.
27. In each of these cases the learned District Judge applied a test of objective reasonableness in assessing the appropriateness of the decisions made by the relevant gardaí. He did not find that the reasoning of the three gardaí to use handcuffs was based on any untruths, or that it was exaggerated, or that it was subjectively unreasonable. Moreover, he did not find in any instance that the gardaí did not genuinely believe that the exigencies of the situation required the use of handcuffs.”

15. Mahon J. then examined the facts as found by the learned District Judge in each of the cases. Mahon J. went on to say in para. 32 as follows:
“The fact that a judge might take the view that the garda is being unduly cautious is irrelevant. In a particular case it would, of course, be open to a judge to decide that the reasons provided by the arresting officer to justify the use of handcuffs are not based on fact or are incorrect or implausible for one reason or another, and on that basis reject them. For example a decision by an arresting garda to place handcuffs on a suspected drink driver because of his concern that the person might run onto a busy road and endanger both himself and road users might be undermined if the road in question was a quiet country boreen.”
In each case, it was noted by Mahon J. that the learned District Court Judge made no finding that the Gardaí concerned in each case did not genuinely hold the belief that the use of handcuffs was necessary in the circumstances as each individual member of the Gardaí perceived them to be. The Court of Appeal therefore concluded that:
“. . . the learned District judge was required to make his findings on the basis of, and with full regard to, the decision of the Supreme Court in Cullen . I am satisfied that he did not do so.”
16. In those circumstances, the Court of Appeal agreed with the decision of the High Court in answering “No” to the question posed by the learned District Judge.
Submissions and discussion
17. Two elements arise for consideration on this appeal. The first element concerns the scope and principles applicable to an appeal by way of case stated as provided for in s. 2 of the Summary Jurisdiction Act, 1857, as amended. The second element concerns the correct application of the law in relation to the use of handcuffs as decided in the Cullen case.

18. It would be appropriate to consider the first of these elements at this stage. The Appellants in their submissions examined in detail the findings of the learned trial judge and the decision of the Court of Appeal. In essence, as can be seen from those judgments, both Courts considered the decision in Cullen , examined the principles to be derived from that decision and concluded that the learned District Court Judge erred in law in the application of those principles to the facts of the case. Counsel on behalf of the Appellants pointed out that the findings of fact made by a District Court Judge are not amenable to an appeal by way of case stated where those findings were open to be made by the District Court Judge. It is argued that both the Court of Appeal and the High Court erred in determining that the fact that a “question of law” was posed by the District Court Judge meant that s. 2 of the Act of 1857 was appropriately engaged. It is contended that the learned High Court Judge fell into error by failing to establish how the District Court Judge fell into error and complaint is then made that the learned High Court Judge reassessed the facts by concluding that the District Court Judge afforded “an insufficiently generous measure of judgment” to the arresting Gardaí, failed to afford a “realistic latitude” to the respective Gardaí and “had insufficient regard to the slowness with which the courts will tend to review operational decisions of individual Gardaí”. On that basis, it is argued that this was not an appropriate use of the s. 2 case stated procedure in that it amounted to an impermissible reassessment of the material facts as found in the respective cases stated and further still, it amounted to a failure to identify how the actions of the District Court Judge constituted or amounted to an error in law.

19. The submissions on behalf of the Appellants then considered the authorities in respect of the jurisdiction in relation to cases stated. Reference was made to Clune v. DPP referred to previously, Fitzgerald v. DPP and DPP v. Nangle . Reference was also made to DPP v. Noonan , Proes v. Revenue Commissioners and finally DPP (Lavelle) v. McCrea . Relying on those authorities, it was submitted that the determination of the Court of Appeal that the fact-finding process undertaken by the District Court Judge was subject to review, constituted an impermissible extension of the appeal by way of case stated procedure.

20. The respondents in their submissions referred to a number of the authorities relied on by the Appellants including DPP v. Nangle , The State (Turley) v. O’Floinn [1968] I.R. 245 and Fitzgerald v. DPP referred to previously. It was pointed out that this was a case in which no ruling was made on the merits of the case because the District Court Judge ruled that the arrests were unlawful and therefore the evidential certificate which was obtained following the arrests was inadmissible. It was noted that the Appellants in their own written submissions had submitted that the District Court Judge in this case had “correctly applied the principles identified in Cullen “. On that basis it was contended that this, of itself, illustrated the fact that what was at issue in these proceedings was a question of law and not a question of fact. The facts were not in dispute, rather what was in dispute was the application of the law to those facts. Accordingly, it was submitted on behalf of the respondent that the cases stated raised questions of law which were correctly answered by the High Court and the Court of Appeal.

21. In truth there is little difference between the parties in relation to the operation of the case stated procedure. The authorities cited by the parties highlight the limited scope of an appeal by way of case stated. Section 2 provides a procedure whereby a District Court Judge can request a Superior Court to give an opinion on a point of law arising from the decision of the District Court Judge. The procedure requires the District Court Judge to set out for the benefit of the High Court the relevant findings of facts and the grounds for the determination giving rise to the question of law upon which the opinion of the High Court is sought.

22. By way of example one can look at the format of the case stated in the case of one of the Appellants, Mr. Gannon. The case stated in that case commenced with an introduction setting out the nature of the charge before the Court. The charge sheet was appended to the case stated. Reference was then made to the evidence proved or admitted before the District Court Judge. Included in that was the following paragraph:

“Under cross-examination, Garda Kenny stated that the accused was handcuffed on arrest. He stated that he makes an assessment every time he arrests someone and that the accused was handcuffed for his own safety, the safety of Garda Kenny and for the safety of other road users because they were standing on the side of the M50, a very busy motorway with a lot of traffic, and if the accused decided that he didn’t want to get into the back of the car, the Gardaí would be struggling with a man on the side of a very busy motorway and there could have been a major incident. Garda Kenny accepted that the accused had been compliant and agreed that the accused was showing exemplary behaviour up to that point. Garda Kenny also accepted that the handcuffing was precautionary in nature. Garda Kenny accepted that the handcuffs were placed on the accused on a ‘if he decided’ basis rather than any indication of non-compliance.”
23. Reference was then made in the case stated to the submissions made on behalf of the parties. At the heart of the submissions was the applicability and scope of the decision in Cullen . Thereafter it was indicated that “having carefully considered the submissions of the parties I held that the handcuffing was not justified as a precautionary measure and I dismissed the case on the basis of the decision in DPP v. Cullen “. It was in that context that the DPP was dissatisfied with that ruling and that the opinion of the High Court was sought as to whether or not the view of the District Court Judge in relation to the application of Cullen was correct.
24. There is no doubt that the role of the High Court on an appeal by way of case stated is limited to giving an opinion on the point of law raised in the particular case. The point at issue may involve a mixed question of law and fact but nevertheless it is only in relation to a point of law that the Court has jurisdiction to give an opinion and the procedure provided for by s. 2 of the Act of 1857 is not a procedure that gives the High Court an overriding jurisdiction to supervise the judicial function of a District Court Judge. As was pointed out by Finlay P. in the case of DPP v. Nangle :

“I am satisfied, however, that it would constitute an unwarranted interference by me in a proceeding which is exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it, to hold that evidence so summarised could not have raised a doubt in the mind of the District Justice. He had the opportunity of hearing the witnesses in this case and of listening to their answers to questions both in direct and cross-examination dealing no doubt in significant detail with the incidents which occurred. ”
Thus in the context of that case, the appeal by way of case stated was dismissed. In that case the DPP had sought to argue that the respondent’s evidence in the case was so incredible that it was a perverse decision in law for the District Court Judge to allow it to raise a doubt in his mind. Nevertheless it had been conceded in that case that where a District Judge reaches a determination which is unsupported by the evidence before him the decision whether to acquit or convict could be set aside on appeal by way of case stated.
25. The latter was a point which was reiterated by Hardiman J. in the case of DPP (Lavelle) v. McCrea [2010] IESC 60 in which Hardiman J. commented:

“There is no need, in my opinion, for this Court to scrutinise that finding, or any other finding of the learned District Judge other than to enquire whether these findings were such as were open to her on the evidence. . . In conformity with the long standing practice of the Superior Courts, it is unnecessary, and would be wrong, to speculate what the result might have been had the facts been slightly different in one way or another and we do not do so.”
Relying on those authorities it was contended on behalf of the Appellants that a determination on the justification for the use of handcuffs was for the District Court Judge to determine alone.
26. It must be borne in mind that the scope of an appeal by way of case stated is of a limited nature and that the jurisdiction to entertain an appeal by way of case stated must be strictly construed as was pointed out by Hardiman J. in Fitzgerald v DPP at p.365 of his judgment. At the heart of the appeal by way of case stated in this case is the decision of this Court in Cullen . What is at issue is whether or not the District Court Judge correctly applied the principles to be found in that case to the facts of these cases. That is undoubtedly a question of law and as such is one which is appropriate to an appeal by way of case stated. One cannot give such an opinion without reviewing the facts of each case in order to determine if the learned District Judge applied the principles in Cullen correctly. Reviewing the facts is not the same as coming to a different finding of fact on the evidence before the court. That is not what happened in the High Court or, indeed, the Court of Appeal. Thus, insofar as it has been contended that the appeal by way of case stated in this case is an impermissible review of the findings of fact made by the learned District Judge and not one that comes within the scope of the case stated procedure, I reject that contention and am satisfied that this case is one which comes within the jurisdiction provided for in the Act of 1857 as amended.
The decision in Cullen
27. It would now be appropriate to consider in some more detail the decision in the Cullen case which is at the heart of the point of law raised in this appeal. It is relevant to note that none of the parties to this appeal have suggested that the decision in Cullen was wrongly decided.

28. Cullen was a case in which a person arrested on suspicion of drunk driving was handcuffed. A consultative case stated came before this Court after Mr. Cullen had been convicted in the District Court and had appealed his conviction to the Circuit Court. The essential facts are set out in the case stated and are as follows:

“On cross-examination, Sergeant Moyles stated that Peter Cullen had cooperated with the Gardaí at all times during the interaction with Mr. Cullen and the Gardaí prior to and subsequent to his arrest. Sergeant Moyles further accepted that Peter Cullen had not used or threatened force in order to avoid arrest, nor had Sergeant Moyles formed the opinion that there was anything in the conduct of the accused which might lead him to suspect that the accused might resist arrest unless restrained. . . . Sergeant Moyles stated that it was his policy to place any person arrested for an offence under s. 49 of the Road Traffic Act in handcuffs irrespective of the circumstances as it was his experience that such persons might become abusive and resist arrest either immediately prior to or following communicating the reason for arrest to them.”
29. The Circuit Court Judge having heard submissions stated:
“I decided that as a matter of fact the prosecution had failed to prove that the placing of the accused in handcuffs was neither lawful, proportional nor justified and consequently that Sergeant Moyles in placing handcuffs on the accused had acted unlawfully.”
30. In the course of submissions counsel on behalf of Mr. Cullen argued that the action of restraining an individual by the use of handcuffs constitutes the “use of force”. It was further submitted that the policy and practice of the Gardaí in employing and restraint by handcuffs failed to take account of Mr. Cullen’s constitutional right to avoid the deprivation of his liberty, save in due course of law, his right to bodily integrity and his right to avoid being the object of unnecessary force, restraint or humiliation in the course of arrest. By contrast counsel on behalf of the DPP submitted that, on the evidence, the handcuffs were placed on Mr. Cullen only after his arrest and that the alleged act of wrongdoing could not therefore affect the validity of the initial arrest. It was further submitted that handcuffing was an ancillary part of but not an ingredient of a valid arrest.
31. The first task undertaken by Fennelly J. in the course of his judgment in that case was to identify clearly the facts as found and in particular whether the application of handcuffs was an integral part of the arrest or merely something which took place afterwards and secondly, whether the Sergeant, in his evidence, stated that he adopted a general and unvarying practice of handcuffing all suspects arrested in drink driving cases. Having considered the wording of the case stated, Fennelly J. concluded that on the facts of the case, the Court was dealing with the application of handcuffs as an integral and, in the view of Sergeant Moyles, a necessary part of the arrest process. Secondly, it was concluded that “There seems to be no room for doubt but that the Sergeant was of the opinion that the application of handcuffs was necessary ‘irrespective of the circumstances’.” Accordingly, Fennelly J. observed at para. 17 of the judgment that what was involved was a general policy applied by a particular officer of An Garda Síochána without exception to every person arrested on suspicion of driving under the influence, even where that person was entirely peaceful, cooperative, unresisting and willing to travel voluntarily to the Garda Station. Having then clearly established the facts as discernible from the consultative case stated, Fennelly J. then considered the use of force in effecting arrest. He referred to the fact that there was no modern Irish authority in relation to the appropriateness of the use of handcuffs. He cited one nineteenth century case, Leigh v. Cole (1853) 6 Cox CC 329 and a number of modern authorities from the United Kingdom including Simpson v. Chief Constable of South Yorkshire Police [1991] 135 SJ 383, and Hunter v. Chief Constable of West Midlands Police [1982] AC 529. He referred to passages from Blackstone’s Criminal Practice 2011 and to Archbold 2010 the latter of which includes the following statement:

“The use of excessive force does not per se render an arrest unlawful, although it might be the basis for some other remedies” (p. 2035).
32. Having examined those authorities, Fennelly J. concluded at paras. 26 and 27 as follows:
“I would entirely accept that any individual member of An Garda Síochána is fully entitled to and may well be obliged to apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular case. The decision must be left to the individual Garda dependent on his or her own appreciation of the requirements of the individual case. The nature of the offence, the prevailing circumstances, the personality and character of the individual to be arrested must be taken into account. The law is realistic. It is appreciated that decisions on the necessity for an arrest, the appropriate amount of force and the need for the use of handcuffs are often made under pressure of circumstances of urgency, of danger of flight, and of violence and the threat of violence. Ordinarily, courts are slow to review decisions of Garda officers made in the wide range of situations which they confront in the course of their duty.
It may be, therefore, that the use of handcuffs is justified, in the particular circumstances, in order to prevent the arrested person from fleeing or otherwise causing disturbance. In the present case, the decision as to whether to apply handcuffs was pre-ordained. It did not depend on any evaluation of the circumstances. It left no room for the case of the entirely peaceful and cooperative suspect.”

33. It will be readily apparent that a number of the principles identified by the learned trial judge emanate from the passage just referred to.
34. Fennelly J. then proceeded to consider the effect of an unlawful arrest. Having reviewed a number of authorities including DPP v. Gaffney [1987] I.R. 173 and Director of Public Prosecution v. McCreesh [1992] 2 I.R. 239, DPP v. Finn [2003] 1 IR 372, DPP (Kelly) v. Fox [2008] 4 IR 811 amongst others he concluded as follows:

“The present case, of course, does not involve trespass. To that extent, it is different from DPP v. Gaffney [1987] I.R. 173 and Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239. However, I believe that the principle established in those cases is relevant. The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of which the present would appear to be one, be applied when it is quite unnecessary to do so. . . .
In my opinion, an arrest carried out in what one hopes are the unique circumstances outlined in the case stated is unlawful. I would answer the first question in the Case Stated in the affirmative. I would answer the second question by stating that the arrest was unlawful. That is sufficient to determine the case.”

35. There was also a judgment delivered in that case by Clarke J. (as he then was). In his judgment there was a large measure of agreement with the analysis of Fennelly J. but he differed in his conclusion. He stated at para. 66 of his judgment:
“There was nothing to stop a lawful arrest taking place. The requisite opinion had been formed by the arresting sergeant. It was the manner of arrest rather than the fact of arrest which was unlawful. In my view the position adopted in the United Kingdom correctly analyses the consequences which arise in such a situation. The arrest is lawful. The manner of arrest is not lawful. The remedy for the suspect is that appropriate to the unlawfulness of the manner of his arrest (such as damages for assault) rather than for the arrest itself (which occurred in circumstances where the arresting sergeant had a perfect entitlement to arrest) to be found to be unlawful.”
Thus he concluded that while the placing of handcuffs on Mr. Cullen was unlawful it affected the manner of his arrest rather than the entitlement to arrest him and therefore did not affect the lawfulness of his arrest or his custody thereafter.
36. It is not necessary for the purpose of this judgment to consider the issues that led to the dissenting judgment in that case. It is sufficient to note that as mentioned previously neither counsel for the Appellants nor counsel for the DPP took issue with the majority judgment in that case.
The application of Cullen to the facts of this case
37. It is contended on behalf of the Appellants that the Court of Appeal erred in the manner in which it applied the Cullen decision to the facts of the respective cases stated and that it further erred in assessing the approach of the District Court Judge in the trial court. This submission is based on a contention that the Court of Appeal erred in determining that the appropriate test as to the justifiable use of handcuffs was “primarily subjective rather than objective reasonableness” (see Mahon J. at para. 26 of the judgment of the Court of Appeal). It is further contended that the Court of Appeal was in error insofar as it held that the use of handcuffs would be lawful so long as the trial judge was satisfied that the arresting garda had made a genuine, albeit subjective, assessment as to what the exigencies of the situation required and had acted on such assessment rather than on foot of a blanket policy to use handcuffs.

38. It was further contended that the learned High Court Judge erred by making an unsupported assertion to the effect that the District Court Judge was misapplying the law by virtue of regularly finding no objective justification arose for the use of handcuffs. The learned trial judge in para. 43 of his judgment made the following comment:

“The regularity with which the learned District Judge found handcuffing to be unlawful (on 3rd March, 20th March, and 28th May, 2014, in the three appeals presenting) suggests to the court that in breach of applicable law, as identified in Cullen, the learned District judge he had insufficient regard to the uncommonness of the situations in which handcuffing will in practice be found to be unlawful.”
Complaint is made by the Appellants that this assertion is unsupported by any basis in fact or by regard to any empirical data. In fairness to the Appellants, there is validity in this point. There was no evidence before the learned High Court Judge as to the rate or regularity with which the learned District Judge found handcuffing to be unlawful. The fact that in these three cases, he made such a finding, is not evidence one way or another as to the “regularity” with which the learned District Judge found handcuffing to be unlawful. Equally, it might be observed that there is no evidence before this Court as to the number of cases before the learned District Judge in any given period in which this issue could have or would have arisen. Thus whilst complaint has been made by the Appellants as to the observation as to regularity by the learned trial judge, equally one might observe that there is no evidence before this Court on the issue. The attempt by the Appellants in their submissions to provide a calculation as to the number of cases heard by the learned District Judge in a given period and to extrapolate from that the fact that he did not do so with any regularity is equally an assertion made in circumstances where there is no evidence of that kind available to this Court. Nothing further needs to be said in relation to this point which does not affect the substantive issue raised in the case stated.
39. The central point made on behalf of the Appellants is that while it is clear that the trial judge will afford an arresting officer a wide margin of appreciation and will have regard to the motivation of the officer in effecting a forceful arrest, the trial judge is entitled nonetheless to conclude that Gardaí must only use such force as is reasonable in the circumstances and it is therefore for the trial judge to decide whether in the circumstances of any given case the force used was in fact reasonable or necessary. If in the view of the trial judge the force used was not reasonable then the force used was “quite unnecessary” and in those circumstances the trial judge would be entitled to form the view that an arrest was unlawful. In making that submission, the Appellants relied on two particular passages from the judgment of Fennelly J. where he stated “to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested” was unlawful. He went on to say at p. 45 of the judgment:

“It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of which the present would appear to be one, be applied when it is quite unnecessary to do so.”
40. The DPP in her submissions submitted that in Cullen , Fennelly J. made the point that Gardaí will be given a generous measure of judgment when deciding whether or not to handcuff an arrested person. The point was made that in these three cases the District Court Judge, far from affording the arresting members a generous measure of judgment as to whether or not to make use of handcuffs in carrying out the arrest, concluded that handcuffing was not justified if applied as a precautionary measure. It was further pointed out that the approach of the District Judge did not reflect the fact that as Fennelly J. stated when referring to the judgment to be exercised by the Gardaí that “An error of judgement by an officer in applying force which he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil”. (see para. 17 of the judgment of Fennelly J.). It was emphasised on behalf of the DPP that there was no finding by the District Judge to the effect that the Gardaí in question did not have a genuine belief as to the necessity to make use of handcuffs. Accordingly it was contended that this was a clear error of law in applying the decision in Cullen to the facts of these cases.
Decision
41. The Court of Appeal in its judgment agreed with the High Court Judge in relation to the principles identified by him from the judgment of this Court in Cullen . (See para. 19 of the judgment of the Court of Appeal).

42. I find no reason to disagree with the identification of the relevant principles to be found in the Cullen decision. Insofar as I have accepted that the learned trial judge fell into error when he expressed a view as to the regularity with which the learned District Judge found handcuffing to be unlawful, that error does not in any shape or form vitiate his judgment in this regard.

43. At this point it would be worth considering briefly the general provisions in relation to the use of force when effecting an arrest. Walsh on Criminal Procedure (2nd Ed.) states at para. 4-117 as follows:

“At common law, a member of the Garda Síochána, and any citizen, can use such force as is reasonably necessary to effect or maintain a lawful arrest or to prevent crime. It will be seen later that the use of force for such purposes is now the subject of statutory provisions. It is not clear, however, whether the statutory provisions should be interpreted as a complete statement of the lawful use of force in this context or only as a limited defence to a criminal charge arising from the use of force in order to effect an arrest or to prevent crime or in self defence. Equally, it is not clear whether the provisions are confined to the use of non-lethal force or extend to the use of lethal force. From one perspective the answers to these questions are of some importance, as the statutory provisions specifically abolish the common law rules governing the use of force within the meaning and scope of the statutory provisions. On the other hand it would appear that the statutory provisions do not affect any substantive change to the common law principles that is currently interpreted and applied by the courts.”
44. Walsh went on to consider handcuffing in the course of an arrest and in that context referred to the decision of Fennelly J. in the Cullen case. The key point to be noted is that force, if used, can only be such force as is reasonably necessary to effect or maintain a lawful arrest. One must consider the context to determine the question of what is reasonable. In this respect, Fennelly J. made it crystal clear that the decision in relation to the application of handcuffs is one that must be left to the judgment of the individual garda bearing in mind the circumstances of the case. As was pointed out by Fennelly J., the law in this regard has to be and is realistic. A member of the Gardaí arresting a person on suspicion of drunk driving will have to make an assessment of the situation and circumstances in a very short period of time. Matters to be considered will include, as has previously been described, (i) the nature of the offence, in this case suspicion of drunk driving, (ii) the prevailing circumstances and (iii) the behaviour, character, demeanour and personality of the individual about to be handcuffed. In each of the three cases here, evidence had been given as to the circumstances preceding the arrest and the use of handcuffs. In the case of Mr. Pires matters taken into consideration included the location where the arrest took place, the fact that Mr. Pires was bigger than the garda concerned and that both were on their own and the risks involved if Mr. Pires became difficult while being transported. Similar considerations arose in relation to the other Appellants. The facts have previously been referred to and it is not necessary to reiterate them at this point. In none of the cases concerned was there any suggestion that the evidence of the Gardaí was not accepted by the District Judge.
45. It is informative to examine the cases stated individually and to look at what was stated by the District Judge. Thus in the case of Gannon , the District Judge recorded his decision as follows:

“Having carefully considered the submissions of the parties I held that the handcuffing was not justified as a precautionary measure and I dismissed the case on the basis of the decision in DPP v. Cullen .”
46. In the case of Corrigan the relevant parts of the decision appear as follows:
“Having carefully considered the evidence in the case, the submissions of the parties and the judgment in the case of DPP v. Cullen [2014] IESC 7, I agreed with the submissions made on behalf of the accused.
I found that although Garda Murphy made a bona fide decision and not as part of a policy to handcuff the accused, his decision was not objectively justified by the reasons given in evidence for the handcuffing.

I found as a fact that the arrest of the accused was unlawful because the use of the handcuffs was not objectively justified.”

47. Finally in the case of Mr. Pires, the District judge gave his decision as follows:
“Having carefully considered the evidence in the case, the submissions of the parties and the judgment in the case of DPP v. Cullen [2014] IESC 7, I agreed with the submissions made on behalf of the accused.
I found as a fact that the behaviour of the accused in his interaction with Garda Brady prior to being handcuffed and the reasons for handcuffing as given in evidence by Garda Brady and set out in paragraph 6 above, did not show any indication that the application of handcuffs was objectively justified.

I found as a fact that the arrest of the accused was unlawful because the use of handcuffs was not objectively justified.”

48. The learned District Judge was clearly of the view that the use of handcuffs had to be objectively justified. I can find no basis in the judgment of Fennelly J. in the Cullen case for a test that the use of handcuffs must be objectively justified. It is clear from the cases stated in each case that the submissions made to the District Judge and accepted by him were to the effect that the appropriate test was that there should be an objective basis for the application of handcuffs on the facts of the individual case. That seems to me to fly in the face of the principles made clear by Fennelly J. in the course of his judgment. I would reiterate what he said, namely, that any individual member of An Garda Síochána is fully entitled to and may well be obliged to apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular case. He went on to point out that the decision must be left to the individual garda depending on his or her own appreciation of the requirements of the individual case. He added that courts were slow to review decisions of garda officers made in the wide range of situations with which they are confronted in the course of their duty. He emphasised that in carrying out an arrest, the Gardaí could only use such force as was reasonable in the circumstances and went on to emphasise that it was the police officer who must make that judgment. I would add that in considering the evidence as to the use of handcuffs in the course of an arrest, courts should avoid the use of hindsight to come to a view that the individual member of the Gardaí concerned should have taken a different course. One has to allow a measure of latitude to the Gardaí.
49. It is clear from the judgment of Fennelly J. that considerable scope or, as it has been put, a generous margin of appreciation will be afforded to a member of the Gardaí in considering what is or is not reasonable in the circumstances of any given case. In the Court of Appeal judgment Mahon J. at para. 32 observed as follows:

“Cullen requires that the decision of the garda to use handcuffs when making an arrest in a drink driving case ought to be made on the basis of his, the officer’s, perspective as to the risks that might arise if handcuffs were not used. In Cullen Fennelly J. stated that ” it is the police officer who must make that judgment “. The fact that a judge might take the view that the garda is being unduly cautious is irrelevant. In a particular case it would, of course, be open to a judge to decide that the reasons provided by the arresting officer to justify the use of handcuffs are not based on fact or are incorrect or implausible for one reason or another, and on that basis reject them. For example a decision by an arresting garda to place handcuffs on a suspected drink driver because of his concern that the person might run onto a busy road and endanger both himself and road users might be undermined if the road in question was a quiet country boreen.”
Mahon J. went on to note that there was no finding in respect of any of the Gardaí that the belief held by the individual Gardaí in relation to the use of handcuffs was not genuinely held.
50. It seems to me that in considering the cases concerned, the District Judge applied an objective test to the circumstances in each case in which handcuffs were applied without having regard to the individual judgment of the Gardaí concerned. In practical terms, each of the Gardaí had given evidence as to the circumstances in which they believed it was necessary to make use of handcuffs. There is no suggestion whatsoever that the learned District Judge did not believe the evidence of the Gardaí concerned. Rather, it appears that the District Judge applied an objective test to a consideration of whether handcuffs were appropriate to be used in the circumstances and, having done so, rejected the judgment exercised by each of the members of the Gardaí concerned. As Barrett J. reiterated in his judgment, the Gardaí are afforded a generous measure of judgment in this context and realistic latitude must be shown to the arresting garda. It was also reiterated that the courts are in general slow to review the operational decisions of individual Gardaí made in the wide range of situations which they confront in the course of their duty. It does not appear to me that the so-called generous measure of judgment or realistic latitude which should be shown to the Gardaí was afforded in these cases. In practical terms the learned District Judge took an objective view and came to a conclusion that in the circumstances of the case it was not appropriate to use handcuffs without affording any real measure of judgment or realistic latitude to the Gardai concerned. Such an approach is not consistent with the principles identified by Fennelly J. in Cullen and reiterated by Barrett J. in the High Court. Accordingly, it is my view that the Court of Appeal in its judgment in dismissing the appeals was correct in upholding the decision of the High Court to answer the question posed by the District Judge “Was I correct in law to find the arrest of the accused unlawful?” in the negative.
Conclusion
51. Two issues had to be considered in this case. The first concerned the scope of the case stated procedure. This procedure is confined to determining issues of law. Insofar as there may be a review of the facts decided in the District Court, it is not for the purpose of reaching a different conclusion as to the facts. Some cases stated will involve mixed questions of law and fact. This case concerned a point of law, namely, whether the principles set out in the Cullen decision were correctly applied to the facts of the respective cases Accordingly, the case stated procedure was appropriately invoked.

52. The second issue concerned the question as to whether the Cullen principles were appropriately applied to the respective cases. For the reasons set out above, I am satisfied that the District Judge in applying an objective test to the consideration of the use of handcuffs, misconstrued the decision of this Court in Cullen .

In the circumstances, I would dismiss the appeals.

 

Director of Public Prosecutions v Rooney

[1993] ILRM 61

O’Hanlon J
This is a consultative case stated by District Judge Hamill, a Judge of the District Court assigned to the Dublin Metropolitan District, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961.

It relates to a charge brought against the defendant, Alan Rooney, that he had in his possession on 18 May 1991, at Talbot Street in the Dublin Metropolitan District, two forged £20 notes, contrary to s. 8 of the Forgery Act 1913.

Evidence was given on the hearing of the said charge, which was being tried summarily in the District Court, that Sergeant G. Maguire approached the defendant in Talbot Street in the City of Dublin on 18 May 1991, and asked him what money he had in his hand. The defendant opened his hand and showed a £10 and a £5 note. Sergeant Maguire then asked had he any other money and the defendant replied in the negative.

The sergeant then put his hand in the defendant’s pocket and found a £20 note which he, the sergeant, believed was a forgery. He said that the defendant lifted his hands out of the way to allow him reach towards his pocket.

A legal objection was taken on behalf of the defendant to the admission of this evidence, in reliance on the decision of the House of Lords in Christie v Leachinsky [1946] 1 KB 124, and the prosecutor, in turn, relied on the powers given to the police under the provisions of the Dublin Police Act 1842, s. 29.

The learned district judge now submits a consultative case stated seeking the opinion of the High Court as to whether a member of the Garda Síochána proposing to exercise his power of search under s. 29 of the said Dublin Police Act, 1842, must:

(a) inform the suspect of his suspicion that he has or conveyed in any manner ‘any thing stolen or unlawfully obtained’;

(b) first arrest the suspect prior to exercising the said power of search;

(c) inform the suspect of his suspicion that he has or conveyed in any manner ‘any thing stolen or unlawfully obtained’ and tell the suspect of the said power under s. 29 of the Dublin Police Act 1842.

The relevant part of s. 29 of the Dublin Police Act 1842, reads as follows:

… and every such constable may also stop, search and detain … any person who may be reasonably suspected of having or conveying in any manner any thing stolen or unlawfully obtained ….

The case of Christie v Leachinsky (which has been followed in this jurisdiction, eg , in the case of People (AG) v White [1947] IR 247) stipulates that before exercising a power of arrest a police officer must (subject to certain exceptions which need not concern us here) inform the person to be arrested of the charge on which he is arresting him.

What we are concerned with in the present case is not a power of arrest (although such a power also arises under the same section) but with the power given to stop and search any person reasonably suspected of having or conveying in any manner any thing stolen or unlawfully obtained.

Although less drastic in its effect than a power of arrest, such action on the part of the police authorities does nevertheless amount to a substantial and significant interference with the liberty of the subject, and it appears to me that the same principles which underlie the decisions in Christie v Leachinsky and White’s case must apply with equal force in this situation also, if the constitutional guarantees of liberty of the person are to be adequately defended and vindicated.

Consequently I would hold that before the power of search given by s. 29 of the Dublin Police Act 1842, already referred to, can now be lawfully exercised, the suspect is entitled to be informed of the nature and description of the statutory power which is being invoked.

I would, accordingly, answer ‘Yes’ to the first and third questions posed in the case stated.

I would answer ‘No’ to the second question, thus holding that it is not necessary to arrest the suspect prior to exercising the power of search. The suspect can, of course, be stopped for the purpose of exercising the power of search, but need not be formally placed under arrest unless it becomes necessary to do so for some other reason.

The case may now be remitted to the said district judge to enter continuances and to proceed thereon having regard to the foregoing decision.

Representation

 

The People v. Kehoe

[1985] IR 444
McCarthy J. 444
C.C.A.

McCarthy J.
17th December 1984

This application for leave to appeal has one undeniable characteristic – it is devoid of merit. The applicant was one of a group of men who, on the morning of the 7th August, 1983, at a private home at Roundwood, Co. Wicklow, were carrying fire-arms consisting of three submachine guns and a Browning revolver, all of which weapons were loaded and ready for use, and another revolver which was unloaded. The possession of such fire-arms was plainly with intent to endanger life – the fire-arms were used for that very purpose in a “shoot-out” with the Gardaí. Nicholas Kehoe was convicted on three charges arising out of these events and his application for leave to appeal is based upon the submission that he was in unlawful custody at the time he was charged before the Special Criminal Court at 4 p.m. on the 8th August, 1983. That court was satisfied that its jurisdiction, as conferred by s. 43 of the Offences Against the State Act, 1939, is lawfully invoked when, in regard to a scheduled offence, the Director of Public Prosecutions directs that the person be brought before that court. In the opinion of this court, this conclusion by the Special Criminal Court was correct but it should be added that such a conclusion has ample support in authority, which might, with advantage, have been cited to the Special Criminal Court and, indeed, to this court – see Attorney General v. Burke [1955] I.R. 30; The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39; The State (Attorney General) v. Judge Roe [1951] I.R. 172 and Hawkins – Pleas of the Crown – 8th edition (1824) Vol. II at p. 420. Reference was made to The Queen v. Hughes (1879) 4 Q.B.D. 614. It is sufficient to say that the jurisdiction of the Special Criminal Court is conferred by s. 43 of the Act of 1939, and that that jurisdiction does not depend upon the technical validity of the manner in which an individual may be physically present before that court which has (by s. 43, sub-s. 1 (c)), jurisdiction to order the detention of and to detain in civil or military custody or to admit to bail in such amount and with or without sureties as that court shall direct, pending trial by that court and during and after such trial until conviction or acquittal, any person sent, sent forward, transferred, or otherwise brought for trial by that court. This is not to say that there are not circumstances constituting unfair procedures or breach of constitutional rights that would not invalidate a trial; ordinarily, however, as was pointed out during the course of the argument in the Special Criminal Court by counsel for the Director, the time to take such a point is when first brought before that court – if the point is not taken then, it is spent.
Having regard to this conclusion, it is unnecessary to come to any concluded view upon the argument that underlay the applicant’s substantial submission – that, in effect, when he was restrained by the application of handcuffs tying his hands behind his back, at about 8.10 a.m., this constituted an arrest; that his purported arrest under s. 30 of the 1939 Act at 8.50 a.m. was, thereby, invalid and that the extension order made by Chief Superintendent Hennelly for a period of 24 hours from 8.50 a.m. was invalid. The court would wish, however, to state that it shares the view of the Special Criminal Court that the restraint placed upon Nicholas Kehoe was part of the sequence of events at the scene, involving the exchange of a great number of shots, the firing of which might be renewed at any moment, and that it was only after things had returned to normal that a formal arrest was made. Accordingly, the point taken by Mr. Sorahan that there cannot lawfully be an arrest upon an arrest – that the individual must be at least formally released, in this instance, before the s. 30 arrest took place, does not arise on the facts. Reference was made to the observations of Henchy J. in The State (Walsh) v. Maguire [1979] I.R. 372 at p. 386:
“As an arrest means a physical act done with a view to detention, and since the accused was already arrested and in detention, this cannot have been an arrest in law.”
The other members of the court in that case, O’Higgins C.J. and Griffin J., expressed no view on this aspect. This court does not share the view expressed by Henchy J. if it is to be construed as meaning that where a common law arrest has been made, for instance in the course of a patent breach of the peace, that a garda officer on then discovering grounds for arrest under s. 30 with the consequent statutory time for detention, is not entitled to effect a further arrest without going through the colourable manoeuvre of an apparent release from custody. Some support for this view is to be found in the judgment of Davitt P. in In re Ó Laighlais [1960] I.R. 93 at p. 108.
The court would wish to advert to one further aspect of the procedure under s. 30 of the Act of 1939. Sub-section 3 enables an officer of the Garda Siochana, not below the rank of Chief Superintendent, to direct that a person arrested under the section be detained for a further period of 24 hours. It is, apparently, the practice to have such direction committed to writing- there is a printed form for that purpose. This does not appear to be a requirement of the sub-section but it is, clearly, a desirable practice, if for no other reason than to have a readily accessible record of the direction. In the instant case, the direction stated the exact time of commencement and termination of the further period of 24 hours. It is quite unnecessary that the specific time of commencement and termination should be stated; for obvious reasons, it may, indeed be undesirable to do so, lest there be some entirely bona fide error; it would, in the opinion of the court, be preferable that such a direction should merely state that the person arrested is to be detained for a further period of 24 hours commencing upon the expiry of the period of 24 hours from the time of his arrest.

 

Finucane v. McMahon

Hamilton P. [1990] IR 169
H.C.

Hamilton P.
7th April 1989

On the 14th June, 1982, Dermot Finucane, the plaintiff and applicant (and hereinafter referred to as “the applicant”), was convicted at Her Majesty’s Crown Court in Northern Ireland sitting at Belfast, Northern Ireland, of the offence that on the 20th August, 1981, in the County Court Division of Belfast, Northern Ireland, he had in his possession one .223 Colt AR15 rifle, one .223 Colt M16 AI rifle and a quantity of ammunition with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property, contrary to article 17 of the Firearms (Northern Ireland) Order, 1981. For the said offence the applicant was on the 14th June, 1982, sentenced to 18 years imprisonment. On the 25th September, 1983, the applicant escaped from the Maze Prison in the County Court Division of Ards, Northern Ireland. On the 5th October, 1987, twenty separate warrants for the arrest of the applicant were issued by one John G. Edwards, described in each of the said warrants as “Resident Magistrate, a Justice of the Peace for each and every County Court Division in Northern Ireland, a Judicial Authority in Northern Ireland competent and having power under the law of Northern Ireland to issue this warrant.” These warrants are exhibits “a” to “m”inclusive in the affidavit of Richard Craig Gawn, an Inspector of the Royal Ulster Constabulary, sworn on the 16th June, 1988, and relate to offences alleged to have been committed by the applicant during the course of his escape from the Maze Prison on the 25th September, 1983. On the 25th November, 1987, the said twenty warrants were duly endorsed within this jurisdiction by Deputy Commissioner John Paul McMahon pursuant to the provisions of Part III of the Extradition Act, 1965. At Granard Garda Station on the same date, the applicant was arrested on foot of the said warrants by Det. Sgt. Charles A. Kane, who read over each of the said warrants to him. On the same date, the applicant was brought before the District Court sitting at Longford, where evidence was given of his arrest on foot of the said warrants and he was remanded in custody by the district justice and such remand was from time to time continued until the 18th December, 1987.
On the 30th November, 1987, a warrant for the arrest of the applicant was issued by one John G. Edwards, described in the said warrant as “Resident Magistrate, a Justice of the Peace for each and every County Court Division in Northern Ireland, a Judicial Authority in Northern Ireland competent and having power under the law of Northern Ireland to issue this warrant.” This warrant sought the return of the applicant to Northern Ireland so that an order might be sought that he be returned to Her Majesty’s Prison, The Maze in the County Court Division of Ards, Northern Ireland, to continue to undergo detention under the aforesaid sentence of 18 years imprisonment. This warrant was duly endorsed by Deputy Commissioner John Paul McMahon pursuant to the provisions of Part III of the Extradition Act, 1965, and the applicant was arrested on foot thereof at the courthouse, Longford, on the 2nd December, 1987, by Det. Sgt. Charles Kane, who read over the contents of the warrant including the endorsement thereof by Deputy Commissioner McMahon to the applicant. On the 18th December, 1987, 21 orders were made by District Justice Peter A. Connellan at a sitting of the District Court at Longford directing the applicant’s delivery at Pamlat, Silverstream, County Monaghan (being a convenient point of departure from the State) into the custody of a member of the Royal Ulster Constabulary, being the police force of the place where the said warrants were issued and which is situate in Northern Ireland, for conveyance to Lisburn being the place where the said warrants were issued.
On the 23rd December, 1987, the applicant instituted proceedings by special summons pursuant to the provisions of s. 50 of the Extradition Act, 1965, claiming an order pursuant to that section directing his release. Although the summons was issued on the 23rd December, 1987, the applicant’s affidavit in support of same was not sworn until the 7th July, 1988.
Although orders were made by the District Court on the 18th December, 1987, in respect of each of the 21 warrants issued as aforesaid, it appears from the affidavit of Richard Craig Gawn sworn on the 16th June, 1988, that as a result of a judgment given by the Rt. Hon. Lord Lowry, the then Lord Chief Justice of Northern Ireland, the Director of Public Prosectuions for Northern Ireland reconsidered the 20 charges outstanding against the applicant arising out of his escape from the Maze Prison on the 25th September, 1983, and to which the 20 warrants dated the 5th October, 1987, relate and that it is now the intention of the Director of Public Prosecutions for Northern Ireland to prosecute the applicant only in respect of 7 of the said offences. The offences in respect of which it is intended to prosecute the applicant if he is returned to Northern Ireland are:
(a) Escaping from lawful custody contrary to s. 26 (a) of the Prison Act (Northern Ireland), 1953.
(b) Assaulting David James McLoughlin and unlawfully and injuriously imprisoning him and detaining him against his will in a Bedford lorry, registration number XOI 8514, in L square within Her Majesty’s Prison, The Maze, contrary to common law.
(c) Assaulting Mervyn Wright and unlawfully and injuriously imprisoning him and detaining him against his will in a building known as the Tally Lodge at Her Majesty’s Prison, The Maze, contrary to common law.
(d) Assaulting David McIlwrath and unlawfully and injuriously imprisoning him and detaining him against his will in a building known as the Tally Lodge at Her Majesty’s Prison, The Maze, contrary to common law.
(e) Assaulting Ronald Colbille Shanks and unlawfully and injuriously imprisoning him and detaining him against his will in a building known as the Tally Lodge at Her Majesty’s Prison, The Maze, contrary to common law.
(f) Assaulting William James Faulkner and unlawfully and injuriously imprisoning him and detaining him against his will in a building known as the Tally Lodge at Her Majesty’s Prison, The Maze, contrary to common law.
(g) Unlawfully by force or threat thereof or by any other form of intimidation exercising control of a motor vehicle, namely a Bedford lorry, registration number XOI 8414, contrary to s. 2 (i) (a) of the Criminal Jurisdiction Act, 1975.
The return of the applicant to Northern Ireland is still being sought on foot of the warrant issued on the 30th November, 1987, under s. 72 of the Criminal Jurisdiction Act, 1967. It appears from the affidavit of the said Richard Craig Gawn that the Director of Public Prosecutions for Northern Ireland has directed no prosecution in respect of the remaining 13 offences.
On the 21st July, 1988, the applicant applied to the High Court for liberty to seek judicial review and for habeas corpus. The said application was grounded on the affidavit of the applicant sworn on the 20th July, 1988. It appears from the view by way of certiorari of the aforesaid orders but an order was made in accordance with Article 40, s. 4, sub-s. 2 of the Constitution that the Governor of Portlaoise Prison do produce before the court the body of the applicant and certify in writing the grounds of his detention.
In pursuance of the said order, the applicant was produced before the court and the said respondent, the Governor of Portlaoise Prison, did on the 27th July, 1988, certify the grounds for the detention of the applicant and that he held him in custody in Portlaoise Prison pursuant to the aforesaid 21 orders for delivery at point of departure dated the 18th December, 1987, together with an order of transfer by the Minister for Justice dated the 18th December, 1987. The combined proceedings so issued, namely the proceedings pursuant to the provisions of s. 50 of the Extradition Act, 1965, and the habeas corpus proceedings, were heard by this court on the 28th February and the 1st, 2nd, 3rd and 6th March, 1989. Although the proceedings were tried on affidavit, the following deponents were cross-examined on the contents of their affidavits: the applicant, Garda Lee, Garda Doran, Chief Superintendent Albert McDonagh, Superintendent Gerard McDonagh, Superintendent Daly, Detective Sergeant Kane and Carol Jackson.
The grounds upon which the applicant seeks an order from this court directing his release may be summarised as follows:
(1) The offences with which he is charged are political offences or offences connected with a political offence.
(2) That the offence in respect of which he was convicted on the 14th June, 1982, was a political offence.
(3) His arrest on foot of the warrants issued by the judicial authority in Northern Ireland was unlawful in that it was effected whilst he was in unlawful custody and being deprived of his constitutional right to liberty.
(4) All proceedings subsequent to such unlawful arrest are tainted with illegality.
(5) The court would be failing in its duty to protect his fundamental constitutional rights if it permitted his return to Northern Ireland to serve the balance of his sentence in the Maze Prison where it is alleged that there is a probability that he would be subjected to assaults and inhuman treatment by prison officers and would be subject to a prison regime which permits its staff either personally or with dogs to assault prisoners, to deprive them of or delay access to doctors or solicitors, to commit perjury, to be unco-operative with enquiries or with investigations conducted by the Northern Ireland Office, the governor of the prison or the Royal Ulster Constabulary without being disciplined.
Special Summons Proceedings Political Offence
The first question to be considered by the court is whether the offence in respect of which the applicant was convicted on the 14th June, 1982, and the offences with which he is now charged are political offences or offences connected with a political offence.
The onus of establishing that the offences to which the warrants relate and the offence in respect of which he was convicted on the 14th June, 1982, are political offences or offences connected with a political offence rests upon the applicant. In his affidavit sworn on the 7th July, 1988, he states at para. 11:
“The said offence [i.e. the offence in respect of which he was convicted on the 14th June, 1982] was committed on behalf of the I.R.A. by an active service unit and in order to further the aims and objectives of the I.R.A. as I then conceived them to be. The said operation was directed against armed British soldiers who were on active service.”
In dealing with his escape from Long Kesh in September, 1983, he states at para. 16 of his affidavit:
“As a Republican prisoner of war, it was my duty to escape and I was instructed by Republican camp staff to escape.”
At para. 18 of the said affidavit he states:
(a) The offences in respect of which the 19 warrants were issued against him were either political offences or offences connected with a political offence.
(b) None of the offences referred to in the various warrants had as their purpose a subversion of the Constitution or the usurpation of the organs of the State established by the Constitution.
(c) The offence for which he was convicted and sentenced did not have as its objective the subversion of the Constitution or the usurpation of the organs of the State established by the Constitution. The offence was directed against armed and uniformed British soliders. The purpose of this offence was confined to attempting to end British rule in Northern Ireland.
(d) Nor did the offences connected with the escape have as their purpose the subversion of the Constitution or the usurpation of the organs of the State established by the Constitution. The primary objective of the escape was to free Republican political prisoners.
(e) The aims and objectives of the I.R.A.’s use of force as he sees them to be are confined to ending British rule in Northern Ireland. He denies that the I.R.A. is an organisation committed to undermining by force the organs of the State established by the Constitution. He further denies that it was ever his intention, desire, aim or objective to undermine in any shape or form by force the organs of the State established by the Constitution.
(f) It has never been, as he has conceived it, an aim or objective of the I.R.A. to overthrow or usurp by force the organs of the State. He has never shared nor would he share such objectives nor would he take steps to further such aim or objective.
The I.R.A. is an unlawful organisation. By the Unlawful Organisation (Suppression) Order, 1939 (S.I. No. 162) the Government declared that the organisation styling itself The Irish Republican Army (also the I.R.A. and Oglaigh na hÉireann ) is an unlawful organisation and ought, in the public interest, to be suppressed.
Section 18 of the Offences Against the State Act, 1939, provides:
“In order to regulate and control in the public interest the exercise of the constitutional right of citizens to form associations, it is hereby declared that any organisation which
(a) engages in, promotes, encourages, or advocates the commission of treason or any activity of a treasonable nature, or
(b) advocates, encourages or attempts the procuring by force, violence, or other unconstitutional means of an alteration of the Constitution, or
(c) raises or maintains or attempts to raise or maintain a military or armed force in contravention of the Constitution or without constitutional authority, or
(d) engages in, promotes, encourages, or advocates the commission of any criminal offence or the obstruction of or interference with the administration of justice or the enforcement of the law, or
(e) engages in, promotes, encourages, or advocates the attainment of any particular object, lawful or unlawful, by violent, criminal or other unlawful means, or
(f) promotes, encourages, or advocates the non-payment of moneys payable to the Central Fund or any other public fund or the non-payment of local taxation,
shall be an unlawful organisation within the meaning and for the purposes of this Act, and this Act shall apply and have effect in relation to such organisation accordingly.”
As stated by the Chief Justice in the course of his judgment in Russell v. Fanning [1988] I.R. 505 at p. 530:
“The fact is that the I.R.A. has, by an order made under s. 19 of the Offences Against the State Act, 1939, been declared by the Government to be an unlawful organisation. Having regard to the cases (see s. 18 of the Act of 1939) in which such an order can be made, it would seem to be difficult to show that the I.R.A. is not an organisation which is committed to undermining the organs of State established by the Constitution.”
I do not accept the averments made by the deponent at para. 18 (e) and (f) of his affidavit sworn on the 7th April, 1988, as sufficient evidence to show that the I.R.A. is not an organisation which is committed to undermining the organs of State established by the Constitution.
I agree with the opinion of the Chief Justice expressed in Russell v. Fanning at p. 531 that:
“[W]here a crime is alleged to have been committed outside the State as part of the activities of an organisation which is committed to overthrowing or undermining by force the organs of State established by the Constitution, a person whose extradition is sought because of his participation in that crime could not be entitled to escape extradition on the ground of the political exception by relying on personal aims or objectives which are less extensive than those of the organisation in question. If he acted under the aegis of such an organisation whose aims and objectives he must have known, he could not, on the true application of the decision of this Court in Quinn v. Wren [1985] I.R. 322, acquire the benefit of the political exception by falling back on a mental reservation which would be incompatible with the organisation in question.”
In the course of his judgment the Chief Justice enumerated the principles laid down in Quinn v. Wren [1985] I.R. 322 and there is no need for me to repeat those principles in the course of this judgment.
It is quite clear from the applicant’s own affidavit that he acted under the aegis of the I.R.A. in committing the offences in respect of which he was convicted and sentenced and in escaping from Long Kesh Prison in accordance with the instructions of the Republican camp staff. It is submitted on the applicant’s behalf that the offence to which the warrant of the 30th November, 1987 (namely the offence which was committed on the 23rd August, 1981, and in respect of which the applicant received a prison sentence of 18 years) relates is a “political” offence and that the offences referred to in the 7 warrants dated the 3rd October, 1987, are “political offences or offences connected with a political offence”. The applicant admits that he committed the offence of the 20th August, 1981, but says that he committed it as a member of the I.R.A. and to further its objects. He says that the offences with which he is charged on the other 7 warrants are all offences arising from his escape from the Maze Prison on the 25th September, 1983, and he states that he regarded it his duty as a “Republican prisoner of war”to escape and that he was instructed by the “Republican camp staff” to escape, and that these offences are “political offences” or offences “connected with a political offence.”
There is no doubt that if this court were to apply the law as stated by the Supreme Court in Russell v. Fanning [1988] I.R. 505 these arguments and submissions must fail. It is however submitted on the applicant’s behalf that the law as therein stated is not applicable in this case. It is submitted that the court must look at the law as it stood on the 20th August, 1981, and the law as it stood on the 25th September, 1983 (the importance of the distinction between the two dates will be adverted to later) and that on both these dates (and certainly on the earlier of them) the law, as then interpretated, would have regarded the offences as “political” or “connected with a political offence” and that accordingly the applicant would be entitled to the political exemption granted by s. 50 of the Extradition Act, 1965. In support of these submissions, the court was referred to a decision of the Supreme Court in The State (Magee) v. O’Rourke delivered on the 31st July, 1968, and reported in [1971] I.R. 205 and to a number of decisions of the High Court between the years 1974 and 1980, including Burns v. Attorney General (Unreported, High Court, Finlay J., 4th February, 1974) and McLoughlin v. Attorney General (Unreported, High Court, Finlay P., 20th December, 1974), in which it was held that the plaintiffs in proceedings brought under s. 50 of the Extradition Act, 1965, who established that the offences with which they were charged were committed by them as members of the I.R.A. and to further its aims, or were committed to further the aims of the I.R.A. by a non-member, were entitled to claim the political exemption contained in the section on the grounds that the offences were either political offences or ones connected with a political offence. It is urged that in Irish law, as it existed on the 20th August, 1981, the offence which the applicant then committed would have been regarded as a political offence as he committed it as a member of, and to further the aims of, the I.R.A.
It is accepted that the situation was not quite so clear on the 25th September, 1983, when the seven other offences were alleged to have been committed because of the Supreme Court decision in Hanlon v. Fleming [1981] I.R. 489 which was delivered on the 5th October, 1981. That was a case in which warrants for the arrest of the applicant were issued in England in respect of offences relating to receiving detonators and plastic gelatine knowing them to be stolen. The applicant sought to avoid his extradition on a number of grounds, one of them being that the offences with which he was charged were political offences or offences connected with a political offence. He gave evidence in the High Court but the trial judge found that it did not satisfy him that any of the proceeds of the applicant’s criminal activities would be used for the purposes of the I.R.A. in such a way as to lend political colour to the offences. The Supreme Court held that this finding was conclusive but Henchy J. (with whose judgment the other members of the Court agreed) added at p. 495:
“But even if the judge’s finding were otherwise, even if it had been found as a fact that the explosive material mentioned in the charge specified in the warrant had been intended for transmission to the I.R.A., it would not necessarily follow that the accused would be exempt from extradition on the grounds that the offence charged is a political offence, or an offence connected with a political offence. There has been no decision of this Court on such a point. It must be left open for an appropriate case.”
The Supreme Court was drawing attention to the fact that it had not authoritatively ruled on the circumstances in which an offence allegedly committed to further the objectives of the I.R.A. would justify a claim to the political exemption contained in s. 50 and that until it did the question should be regarded as an open one.
I do not think that this court is called upon to express an opinion as to what it considers was the state of the law of extradition either in 1981 or 1983 because there is a fundamental flaw in the submissions made on behalf of the applicant. Whether or not an offence is to be regarded for the purposes of s. 50 as a political offence or an offence connected with a political offence is a mixed question of law and fact. The court’s function is to ascertain all the relevant facts and circumstances surrounding the alleged offence at the date of its commission, including, where relevant, the motive for its commission and the objects sought to be achieved by it. Therefore, for the purposes of this case the court must look to all the relevant facts and circumstances surrounding the offence of 1981 and the alleged offences of 1983 for the purpose of deciding whether any or all of the offences can be regarded as “political offences” or offences “connected with a political offence”. Having found these facts it must then apply the law to them.
As Cassels J. remarked in R. v. Brixton Prison Governor, ex parte Kolczynski [1955] 1 Q.B. 540, 549, it must be borne in mind that “the words ‘offence of a political character’ must always be considered according to the circumstances existing at the time when they have to be considered.” The court does not apply the law as it may have been established by judicial decisions at the date of the commission of the offences but as it stands at the date of the hearing. The legal principles which are to be applied to the facts of this case have been authoritatively stated by the Supreme Court in Russell v. Fanning [1988] I.R. 505. I find it impossible to distinguish the facts in this case from the relevant facts in Russell v. Fanning . The applicant herein committed the 1981 offence as a member of the I.R.A. and for the purposes of furthering its aims and the offences alleged to have been committed on the 25th September, 1983, occurred whilst the applicant was escaping from custody pursuant to a duty which he conceived he had as a member of the I.R.A., and pursuant to orders from that organisation. It is quite clear that none of the offences with which the applicant is currently charged and which are the subject of the present application are political offences or offences connected with a political offence.
What remains then for consideration on this part of the case is the alternative argument advanced on the applicant’s behalf. The applicant, it is said, had a reasonable belief and expectation when he escaped from prison in Northern Ireland and came to live in the Republic that his offences would be regarded as political offences and that the State is estopped from denying his entitlement to the political exemption contained in s. 50 of the Extradition Act, 1965. Furthermore, it is submitted that his constitutional right to equal treatment under the law guaranteed by Article 40, s. 1 of the Constitution would be infringed by his extradition in the special circumstances of this case. Both these submissions are based on judgments delivered by the Supreme Court in McMahon v. Leahy [1984] I.R. 525.
It is important to note the special and highly unusual facts in McMahon v. Leahy . On the 10th March, 1975, the applicant had been brought to a courthouse in Northern Ireland to face a criminal charge. He escaped from custody with four others. On the 4th April, 1975, his four co-escapers were arrested in the State and proceedings for their extradition to Northern Ireland were initiated. Orders for the release of all four were made under s. 50 of the Extradition Act, 1965; in two cases the claim of the escaper for exemption from extradition on the grounds of the political nature of his escape was not opposed by the State; in two others the claim, if opposed by the State, was unsuccessfully opposed. Nearly eight years after the escape a warrant for the arrest of the applicant was issued in Northern Ireland. It was endorsed within the State and he was arrested here on the 31st March, 1983. He instituted proceedings for his release under section 50. He failed in the High Court but succeeded in the Supreme Court as a result of additional evidence having been filed which had not been available in the High Court. For the purposes of this case, I would refer to the judgment of Henchy J. (with which
Griffin and Hederman JJ. agreed). In the course of that judgment, it was pointed out that since the High Court hearing documents had come to light which showed that the four other prisoners who escaped with the applicant in circumstances indistinguishable from those of the applicant’s escape were allowed the political exemption from extradition, and, having quoted the guarantee of equal treatment before the law contained in Article 40, s. 1 of the Constitution, the judgment went on to say at p. 541:
“But if the order of extradition sought against the plaintiff were to be made, it would patently result in unequal treatment, at the hands of the Courts, of citizens who, as human beings, are in equal condition in the context of the law involved. The unequal treatment would mean that the four fellow-escapers would have been judicially held (with at least the tacit approval of the State) to be entitled to escape extradition on the ground of the political exemption while the plaintiff, whose entitlement to that exemption cannot be differentiated on the basis of any relevant consideration, would have been invidiously chosen (at the instance of the State in the person of the defendant) for extradition to Northern Ireland where he would be liable to resumption of his imprisonment and to further prosecution. I am unable to see how such inequality of treatment could be said to be in conformity with the implicit guarantee in Article 40, s. 1, that like persons must be treated alike by the law.”
The situation in this case is entirely different to that which pertained in McMahon v. Leahy [1984] I.R. 525. To refuse the applicant the political exemption referred to in s. 50 would not amount to treating him in any way differently to others involved in the same set of circumstances which gave rise to the request for his extradition. Indeed, it would amount to equal treatment because a fellow escaper Robert Russell (the applicant in Russell v. Fanning [1988] I.R. 505) unsuccessfully claimed the benefit of the political exemption in circumstances and on grounds which are indistinguishable from those on which the applicant now relies. The argument that an order of this court which resulted in the applicant’s extradition would amount to an unconstitutional discrimination prohibited by Article 40, s. 1 of the Constitution ignores, it seems to me, the system of judicial adjudication which our courts apply and which is envisaged by the Constitution. Under that system, every branch of the law, and not just the law of extradition, may evolve as a result of one or a series of authoritative judicial decisions. As a result following an authoritative statement of the law it may well be that citizens who had previously enjoyed some statutory exemption, relief or benefit might no longer be entitled to it. For a court to make such ruling or for other courts to follow it does not, in my judgment, involve any infringement of Article 40, s. 1 of the Constitution even if it deprives a citizen of some exemption, relief or benefit which others had previously obtained.
The applicant seeks to rely on other parts of the judgment in McMahon v. Leahy [1984] I.R. 525. Counsel for the plaintiff in that case had asked the Supreme Court to extend the law of estoppel so as to debar the State from opposing the plaintiff’s claim to political exemption. The argument succeeded. Henchy J. stated at p. 542 as follows:
“Even if it be conceded that the statutory requirements for extradition have been complied with in this case, I would hold that the State (acting through the defendant) is not entitled, in the events that have happened, to rebut the plaintiff’s claim to be entitled to the political exemption. Seven years ago the State had a full opportunity (in the cases of the other four escapers) of contesting that claim. In effect, it was conceded in those cases that the political exemption applied. The plaintiff must have arranged his life on the basis that he too would be entitled to that exemption. The absence of any attempt between 1976 and 1983 to seek to execute any warrant for his extradition must have converted his expectation of immunity into a feeling of certainty. Were the State to be allowed to defeat the plaintiff’s claim to the political exemption now, seven years after it conceded (in effect) that that exemption applied in four similar cases and after it has allowed the plaintiff to live for that period on the assumption that the political exemption was his to claim for this offence, the Court would be giving countenance to an unfair, unconscionable and oppressive discrimination. In short it would be acting in disregard of the plaintiff’s rights under Article 40, s. 1, of the Constitution.”
Griffin J. in the course of his judgment stated at p. 543:
“In my view, it would be wholly unjust if the State, having accepted (either by acquiescence or by failure to appeal) a finding that the escape from custody was a political offence in the case of four of those who escaped, should now be allowed to claim that the plaintiff’s escape, which was effected in the same circumstances, was not a political offence or was of a very different legal quality.”
O’Higgins C.J. expressed views to the like effect.
The facts of this case, as I have already observed, are completely different to those in McMahon v. Leahy [1984] I.R. 525 and I do not think that the State by conceding or not opposing earlier applications under s. 50 could be representing to the applicant in this case or to anyone else that it would never do so, or that it would not do so if developments in the law were to justify this course. This submission therefore also fails.
Finally, the court was referred to the new sub-para. (bbb) inserted in sub-s. 2 of s. 50 of the Act of 1965 by s. 2, sub-s. 1 (b) of the Extradition (Amendment) Act, 1987. That section does not however, apply to the present case (see the provisions of sub-s. 2 of s. 2 of the Act of 1987) so that it is unnecessary to consider the submissions which were made on it. Consequently, I refuse to direct a release of the applicant pursuant to the provisions of s. 50 of the Extradition Act, 1965.
Habeas corpus proceedings Arrest and detention of the applicant
The circumstances surrounding the arrest and detention of the applicant as disclosed in the affidavits and oral evidence may be briefly summarised as follows:

1. At approximately 7.30 a.m. on Monday, the 23rd November, 1987, a nationwide search was commenced by the Garda Siochana in co-operation with the permanent Defence Forces. This search was for the purposes of searching for unlawful supplies of arms, ammunition and armaments which might have entered the State and in the context of this national search it was also the intention of the authorities to search for members of the Provisional I.R.A. and other unlawful organisations who might be at large.
2. On the morning of the said 23rd November, a party of gardai visited the home of one Thomas Joseph Cox at Leggagh, Moyne, Co. Longford and had carried out a search there under the authority of a search warrant issued by Superintendent Daly of Granard garda station pursuant to the provisions of s. 29 of the Offences Against the State Act, 1939.
3. Thomas Joseph Cox was arrested under s. 30 of the Offences Against the State Act, 1939, on suspicion of being a member of an unlawful organisation, namely the I.R.A., and was conveyed to Granard garda station.
4. During the course of the search, certain documents relating to the I.R.A., two sleeping-bags and a sum of approximately £15,000 had been found at his house. These documents included training manuals for the I.R.A. and manuals and other information on firearms.
5. Chief Superintendent McDonagh was informed that sometime before the gardai carried out the search of Mr. Cox’s house two unknown men had left his house and had probably gone through the fields or were otherwise in hiding in that locality.
6. Chief Superintendent McDonagh directed a continuation of the search for these two men and that other houses in the vicinity be visited in that regard.
7. Superintendent Patrick J. Daly on the 23rd November, 1987, issued a search warrant to search the residence and lands of one Anthony Kiernan at Annagh, Moyne in the County of Longford.
8. During the course of the search of Anthony Kiernan’s house, it was ascertained that there were two men in the attic of the house.
9. Sometime after being requested to come down from the attic, the two men, one of whom was the applicant, did so and were searched by Gardai Larkin, Martin and Murphy.
10. Though requested to do so, both men refused to give their names and were arrested by Det. Gda. Doran pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939, on suspicion of being members of an unlawful organisation, to wit, the I.R.A.
11. In his affidavit sworn on the 22nd September, 1988, Det. Gda. Doran stated that this arrest of the two men, including the applicant, was effected at 1.12 p.m. on the 23rd November, 1987.
12. The applicant was taken to Granard garda station and was detained there pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.
13. On the morning of the 24th November, 1987, firearms and a quantity of ammunition were found concealed underground in the vicinity of Thomas Cox’s house and Chief Superintendent McDonagh directed the searches to continue.
14. At 12.30 p.m. on the 24th November, 1987, Chief Superintendent McDonagh made an order pursuant to the provisions of s. 30 of the Act of 1939 directing that the applicant be detained for a further period of 24 hours from 1.12 p.m. of that date.
15. It appears from his affidavit that Chief Superintendent McDonagh had received from the garda investigation under his command information as a result of which he suspected that the applicant was a member of an unlawful organisation namely the I.R.A. At the time he signed the said extension order he had this belief and from the information and suspicion he had he was satisfied that he should extend the period of the applicant’s detention for the further proper investigation of the case.
16. The applicant was released in the garda station from his detention under s. 30 of the Act at 1.11 p.m. on the 25th November, 1987, by Garda Lee.
17. Before he left the station, he was arrested by Det. Sergeant Kane on foot of the warrants herein before referred to.
A number of the foregoing facts were disputed by the applicant. In his affidavit sworn on the 20th July, 1988, he avers inter alia that:
(1) He was not arrested at the house of Anthony Kiernan in Annagh, Moyne, County Longford.
(2) He was merely physically detained there and no reason for his detention or power to achieve it was communicated to him.
(3) He was brought into Granard garda station and there arrested under s. 30 of the Offences Against the State Act, 1939, and that this occurred between 1.10 and 1.15 p.m.
(4) At 1.05 p.m. on the 25th November, 1987, a number of policemen came to his cell and said that he was no longer being held under section 30.
(5) If he was arrested at the premises at Annagh, that this arrest took place at a time prior to 1.00 p.m. on the 23rd November, 1987, and that consequently the lawfulness of his custody under the provisions of s. 30 of the Act had expired before 1.05 p.m. on the 25th November, 1987.
(6) That he was in unlawful custody at the time he was purportedly arrested under the extradition warrants.
He further averred that the purpose for which he was arrested, allegedly pursuant to s. 30 of the Offences Against the State Act, 1939, was not to investigate any suspicion of his being a member of a proscribed organisation or any other offence but to detain him until duly completed extradition warrants for his arrest arrived from Northern Ireland. Consequently, it is necessary for the court to decide a number of issues, which are:
(a) Whether and, if so, where and at what time the applicant was arrested pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.

(b) Whether the applicant’s detention pursuant to the provisions of such section at Granard garda station was for the purpose of investigating the offence of which he was suspected or was merely, as alleged by him, for the purpose of detaining him until the arrival of extradition warrants from Northern Ireland.
(c) Whether the applicant was released at the expiry of his detention period authorised by s. 30 of the Act of 1939.
(d) Whether he was lawfully arrested on foot of the extradition warrants.
The applicant was cross-examined by counsel on behalf of the respondent and repeated the contention contained in his affidavit that he had not been arrested pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939, at Kiernan’s house at Annagh, as alleged by Detective Garda Doran and that the first time he was informed of the fact that he was being arrested under s. 30 of the said Act was at Granard garda station and that this arrest took place between 1.10 p.m. and 1.15 p.m. on the 23rd November, 1987. His evidence with regard to times was unreliable because he admitted that his watch was unreliable and that he was relying on his estimate of times relating such times to the 12 o’clock radio news which he had heard in Kiernan’s house.
Detective Garda Doran, who effected the arrest, was cross-examined by counsel on behalf of the applicant on the contents of his affidavit and reiterated his evidence that he arrested both the applicant and another person, now known to have been Paul Anthony Kane, at Kiernan’s house in Annagh pursuant to the provisions of s. 30 of the Act of 1939 on suspicion of being members of an illegal organisation, to wit, the I.R.A. at 1.12 p.m. on that date and had them transported to Granard garda station where they arrived at 1.37 p.m. In his affidavit and in his evidence he gave a full account of the circumstances in which the arrest was made. Garda Lee was the station orderly at Granard garda station and both prisoners were handed over to his custody at 1.37 p.m. In his affidavit he stated:
“I asked the applicant for his name and address and he refused to give me the same. I then handed the applicant a copy of his notice of rights and again asked him for his name and address. He refused again. The applicant then read the notice of rights. I asked the applicant for his name and address which he again refused. I then asked him if he had any request to make after the reading of the notice of rights and he replied that he wanted to contact a solicitor. I asked him if he had anyone in mind and he replied that he wanted to contact Anne Rowland. I then asked the applicant if he had any property with him and he stated all his property had been taken from him at the time of his arrest. I further asked the applicant if he was aware of why he had been arrested. He replied that he did not know. Detective Garda D. Doran then stated that the applicant had been told that he was being arrested under s. 30 of the Offences Against the State Act, 1939, on suspicion of being a member of an unlawful organisation. He further stated that the applicant had been informed of this at the time of his arrest which was 1.12 p.m. on that date.
I then searched the applicant and placed him in cell no. 2 at 1.57 p.m. on the 23rd November, 1987.”
This witness was also cross-examined by counsel on behalf of the applicant.
I found Detective Garda Doran and Garda Lee to be reliable and credible witnesses and accept their evidence. The evidence of Detective Garda Doran with regard to the place and time of arrest was confirmed by the affidavits of Garda Thomas Fleming, Garda Edward Martin and Garda Michael Fleming. The Garda Siochana custody record also confirms this evidence in that it shows the time of arrest as being 1.12 p.m. on the 23rd November, 1987, and the time of arrival at the station as being 1.37 p.m. on that date. I am satisfied that the applicant was arrested at Kiernan’s house at Annagh in the County of Longford by Detective Garda Doran pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939, on suspicion of being a member of an unlawful organisation, to wit, the I.R.A. at 1.12 p.m. on the 23rd November, 1987.
In addition, I am satisfied having regard to the circumstances set forth in his affidavit and his evidence which I accept, that Detective Garda Doran had a reasonable suspicion concerning the particular offence in question, namely, membership of an unlawful organisation, and that the arrest of the applicant and his subsequent detention were due to a genuine desire and intent of the part of the garda authorities to pursue the investigation of that offence and was not a device to enable the applicant to be detained until, as alleged by him in his affidavit, “duly completed extradition warrants arrived from Northern Ireland.” This desire and intent is clearly shown in the affidavits of Chief Superintendent Albert McDonagh, Superintendent Daly and Superintendent McDonagh of the fingerprints section and confirmed in their evidence given under cross-examination by counsel on behalf of the applicant, which evidence is accepted by me.
Every effort was being made to establish that the applicant was one of the two men who had been seen leaving Thomas Cox’s house before the search had been carried out at the house where documents relating to the I.R.A., including training manuals for the I.R.A. and manuals and other information on firearms had been found. In addition, on the morning of the 24th November, 1987, firearms consisting of three pistols and a quantity of ammunition were found concealed underground in the vicinity of Mr. Cox’s house. These firearms and other exhibits, 219 in all, were sent to the garda technical bureau, fingerprints section, arriving at 5.05 p.m. on the 24th November, 1987, together with a number of sets of fingerprints, including those of the applicant. These were checked for fingerprints until 10.30 p.m. on that night and on the following day until 1.00 p.m. to ascertain whether the applicant could be linked with any of the exhibits in the case. This investigation continued until 1.00 p.m. on the 25th November, 1987, when, on receiving information that no evidence of evidential value had been discovered as a result of the said investigation, Chief Superintendent McDonagh directed the release of the applicant from his detention pursuant to the provisions of s. 30 of the Act of 1939.

I accept unreservedly that the applicant’s detention under that section was because of the investigation by the gardai of the offence of membership of an illegal organisation, namely the I.R.A. and that they were also investigating a possible link between the applicant and the guns and ammunition found at Mr. Cox’s house. I accept Chief Superintendent McDonagh’s evidence that he had no knowledge of any extradition warrants until approximately 11.30 a.m. on the 25th November, 1987, when he learned of same at the office of the respondent, Deputy Commissioner McMahon. I am satisfied that the detention of the applicant was lawful and was not for the purpose of detaining him until the extradition warrants became available.
At 1.07 p.m. on the 25th November, 1987, Sergeant Molloy directed Garda Lee to open the cells as he was releasing both prisoners namely the applicant and Paul Anthony Kane. Inspector Cullinane, Sergeant Molloy and Garda Lee went to the cells which were then opened by Garda Lee. The applicant and Paul Anthony Kane came out of the cells into the hallway and were informed by Sergeant Molloy that they were no longer detained under s. 30 of the Offences Against the State Act, 1939, and that they were free to go. The time that they were so informed was exactly 1.11 p.m. Sergeant Molloy then walked up the hallway towards the front of the station with Kane and the applicant walking beside him and Inspector Cullinane and Garda Lee behind. As they reached the recreation room, Detective Sergeant Kane arrested the applicant on foot of the 20 warrants hereinbefore referred to and brought him into the recreation room where he read over each of the said warrants to him. The usual formalities associated with a release from custody, such as the return of a prisoner’s property were not complied with in this case because of the applicant’s arrest by Detective Sergeant Kane. It was submitted on behalf of the applicant that at no time had he been released from his detention under s. 30 as the section requires and that consequently he was in unlawful custody at the time of his alleged arrest by Detective Sergeant Kane. The fact that the applicant was informed that he was no longer being held under s. 30 of the Act is confirmed by the contents of his affidavit.
It is submitted on behalf of the applicant that at no time had he been released from his detention under s. 30 as the section requires and that consequently he was in unlawful custody at the time of his alleged arrest by Detective Sergeant Kane.
Section 30, sub-s. 4 of the Offences Against the State Act, 1939, provides:
“A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Gárda Síochána, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section.”
Reliance is placed by the applicant on the entry in the Garda Siochana custody record wherein it is stated: “25.11.1987 – 1.11 p.m. Taken from cell to be charged.” as indicating that at no stage was the applicant released from custody. This entry was made by Garda Lee who in his testimony under cross-examination explained how this entry came to be made and was a mistaken entry. I consider Garda Lee to be a truthful and honest witness and accept the account given by him as to how he came to make that entry and that it was a mistaken one. It is at variance with the admitted fact that the applicant was told that he was no longer being detained under s. 30 of the Offences Against the State Act, 1939. Were it not for the fact that Detective Sergeant Kane was in possession of 20 warrants for the arrest of the applicant, it is perfectly clear that he would have left Granard Garda Station as did Paul Anthony Kane. The reason why he was not permitted to do so was because of the arrest effected by Detective Sergeant Kane at 1.12 p.m. on the 25th November, 1987.
The release of a person detained under s. 30 of the Offences Against the State Act, 1939, does not involve a guarantee that such person cannot and will not be arrested on charges in respect of offences other than those in respect of which he has been detained. Counsel on behalf of the applicant submitted that the applicant, notwithstanding what he had been told outside the cell door by Sergeant Molloy, remained in the detention of the Garda Siochana until the time of his arrest by Detective Sergeant Kane and referred to the portion of the judgment delivered by the Chief Justice in the case of Kane v. Governor of Mountjoy Prison [1988] I.R. 757 where he stated at p. 768:
“The essential feature of detention in this legal context is that the detainee is effectively prevented from going or being where he wants to go or be and instead is forced to remain or go where his jailer wishes him to remain or go.”
He conceded that Detective Sergeant Kane would have been entitled to effect the arrest of the applicant at any time during the period of his detention pursuant to the provisions of s. 30 of the Act of 1939 but contended that he was not free to arrest the applicant once the period of detention had expired. On the termination of the applicant’s detention under s. 30, he was free to go where he wanted to go and was not forced to remain in the station. He was very quickly prevented from so doing but this was not because of any failure to release him pursuant to the provisions of s. 30 but because of the fact that at 1.12 p.m. he was arrested by Detective Sergeant Kane on foot of the extradition warrants hereinbefore referred to.
It was clearly established in In re Ó Laighléis [1960] I.R. 93 that it was lawful to arrest a person on foot of a warrant during the period of his detention pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939. In the course of his judgment in that case, Davitt P. stated at pp. 108-109:
“In the result we do not think that there is any legal principle which prevents a person already in one custody from being arrested and taken into another custody. To put the matter another way, the transfer from one custody to another can be regarded as an arrest in the ordinary sense of the term, by the new custodian. In ordinary lanugage a person can be properly said to be arrested when he is taken into custody whether he is taken from a state of freedom or of previous restraint. On this view, it does not avail the applicant here that, but for the intervening arrest and detention under the warrant, he would have been due to be released at the end of the period of detention under section 30. The sole question is whether the arrest and detention were lawful. In our view the applicant was arrested under the warrant of the Minister within the meaning of section 4. As a person so arrested, he was a person who could be detained under the warrant. The warrant itself is a sufficient justification for the arrest and detention when, as here, its existence and authenticity are established and there is in reality nothing adduced by the applicant to show or suggest that it was not made regularly and in good faith.
In our view the applicant’s custody in the Bridewell under s. 30 of the Act of 1939 gave him no immunity from arrest under the Minister’s warrant.”
This passage was referred to with apparent approval by the Court of Criminal Appeal in the case of the Director of Public Prosecutions v. Nicholas Kehoe (Unreported, 17th December, 1984).
If a person can be lawfully arrested when under detention pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939, surely it cannot be said that he cannot be arrested at the lawful termination of such period of detention. I am satisfied that the applicant was released from his detention pursuant to the provisions of s. 30 of the Act of 1939 at 1.11 p.m. on the 25th November, 1987, and that his subsequent detention in Granard garda station was by reason of the execution by Detective Sergeant Kane of the warrants hereinbefore referred to. I am further satisfied that he was lawfully arrested by Detective Sergeant Kane at 1.12 p.m. on the 25th November, 1987, at Granard station. I dismiss the applicant’s application for an order directing his release on this ground.
Infringement of constitutional rights
A considerable number of different points were raised in the applicant’s affidavit and during the course of the hearing both during the cross-examination of Mr. Carol Jackson and in counsels’ submissions on behalf of the applicant to support the contention that the court would be failing in its duty to protect the fundamental constitutional rights of the applicant if it failed to direct his release and permitted his return to Northern Ireland.
It is claimed by and on behalf of the applicant that if he were returned to Northern Ireland and the Maze Prison:
(a) his right to life would be endangered;
(b) his right to bodily integrity would be endangered;
(c) he would be denied a right to medical treatment and access to a solicitor;
(d) he would be detained in a prison where he alleges that:
(i) the rule of law did not apply or did not apply from time to time and where no arrangements or no adequate arrangements were enforced to ensure that the rule of law applied at all times;
(ii) the Catholic, Gaelic and Republican ethos of Republican prisoners is actively despised and undermined by the prison authorities and such prisoners are discriminated against;

(iii) there exists political and cultural censorship and the use of the Irish language during visits is prohibited;
and that detention in such circumstances constitutes a deprivation of the applicant’s constitutional rights.
The onus of establishing the probability that if delivered out of the jurisdiction, the applicant would be deprived of his constitutional rights rests upon the applicant. The function of a judge hearing an application for an order of habeas corpus in relation to an order for delivery under the Act of 1965 is to reach a conclusion on all the evidence presented to him as to whether it has been established that it is probable that some such ill-treatment or unfair procedure will be experienced by the applicant if delivered out of the jurisdiction. On these issues, the evidence presented before this court consisted of:
1. The affidavit of the applicant sworn on the 7th April, 1988, and the documents therein exhibited;
2. The affidavit of Brian Pettigrew sworn on the 31st October, 1988, and the documents therein referred to;
3. The affidavits of Carol Jackson sworn on the 20th June, 1988, the 18th October, 1988, and the 30th November, 1988, respectively and the documents therein referred to.
At all relevant times, Mr. Jackson was a grade 5 officer of the Northern Ireland Civil Service holding the position of director of regimes within the Northern Ireland Office Prison Department and he was cross-examined by counsel on behalf of the applicant on the contents of his affidavits, on conditions within the Maze Prison and with regard to the behaviour and attitude of the prison staff employed in the said prison. In addition, counsel on behalf of the applicant relied on certain findings of the present Lord Chief Justice of Northern Ireland in the case of Pettigrew v. Northern Ireland Office [1989] 3 B.N.I.L. 83, delivered on the 17th November, 1988, and exhibited in Mr. Jackson’s affidavit sworn on the 30th November, 1988.
Before considering the applicant’s claims as set forth herein and the evidence with regard thereto upon which he seeks to discharge the onus of proof which rests on him, it is relevant to set forth certain facts establishing the background against which much of the evidence must be considered namely:
(1) The applicant had on the 14th June, 1982, been sentenced to 18 years imprisonment and on the 25th September, 1983, was a convicted prisoner serving that sentence in H-Block 7 of the Maze Prison which block contained over 120 Republican prisoners.
(2) On that date 38 prisoners escaped from H-Block 7 into the prison grounds after having held up and bound the prison officers in that block and a substantial number of these prisoners, including the applicant, escaped from the prison itself.
(3) The report of an inquiry by H.M. Chief Inspector of Prisons into the security arrangements at H.M. Prison, Maze relevant to this escape (“the Hennessy Report”) referred to in the applicant’s affidavit described this escape as “the most serious escape in the recent history of the United Kingdom Prison Service” and noted that during the escape one prison officer died (the direct cause subsequently having been found by the Lord Chief Justice to have been heart failure); four other prison officers were stabbed; two were shot; thirteen were kicked about and beaten and forty-two were subsequently off work with nervous disorders.
(4) After the prison authorities had resumed control of H- Block 7 the remaining prisoners were locked in their cells.
(5) Guns had been used in the escape from H-Block 7 and a prison officer in that block had been seriously wounded in the head by a gunshot in the escape.
(6) Prison officers therefore decided to transfer all the remaining prisoners in H-Block 7, a total of 88, to H-Block 8, which was nearby and was unoccupied, in order to ensure that those prisoners were housed in a block where there was no risk that other weapons were hidden, to enable a thorough search to be made of H-Block 7 for hidden weapons, and also to enable the police scene of crime officers to carry out a thorough investigation in that block. It was alleged that those prisoners while being transferred from H-Block 7 to H-Block 8, were subjected to assaults by prison officers and that some were bitten by dogs under the control of their handlers, being prison officers.
(7) On Monday, the 26th September, 1983, the governor of The Maze had a meeting with representatives of the Prison Officers Association (H.M. Prison Maze Cellular) and was informed by them that as a mark of respect to officer Ferris certain services were being withdrawn by them until after the funeral of prison officer Ferris.
(8) On the following morning at a meeting with senior staff, the Governor learned that the prison officers were not allowing prisoners requests to visit the medical officer.
(9) He then met members of the Prison Officers Association, expressed his concern at their action in refusing prisoners’ requests for medical treatment and requested them to review their decision in this regard, but they refused.
(10) The Governor then informed Miss Simmons of the Northern Ireland Office and it appears from the evidence of Mr. Jackson that it was decided that the best way of dealing with the problem was to attempt to have normal working conditions in the prison restored.
(11) These conditions were restored on the day after prison officer Ferris’ funeral, viz. on Friday, the 30th September, 1983.
(12) Thereafter requests for medical treatment and legal advice were dealt with, though there was some delay.
(13) Soon after the escape, Mr. Jackson of the Northern Ireland Office became aware of allegations made by and on behalf of prisoners about alleged mistreatment in the course of the transfers to H-Block 8 of prisoners who had remained behind in H-Block 7; and also in respect of the treatment of prisoners who had escaped and were re-captured.
(14) On the 11th October, 1983, Mr. Jackson requested the Governor to have an investigation carried out into these allegations.
(15) It appears from Mr. Jackson’s affidavit sworn on the 18th October, 1988, that the investigation was carried out by the Deputy Governor but was hampered by non-co-operation from prisoners and prison officers and that there was no evidence in his report which would have enabled disciplinary proceedings to be taken against any identified prison officer.
(16) It further appears from Mr. Jackson’s affidavit that the Chief Constable of the Royal Ulster Constabulary was requested to investigate the allegations but that the investigation was impeded by the failure of any of the prisoners to co-operate in the said investigation despite a number of requests so to do.
(17) The allegations were considered at a meeting of the Board of Visitors on the 12th October, 1983, who in their report highlighted the following points:
“1. Breakdown in discipline and control of prison staff.
2. Delay in medical attention.
3. Inadequate medical attention.
4. Delay in returning personal property, including spectacles.
5. We noted an unhelpful attitude towards the Board of Visitors from Prison Officers”
and concluded as follows:
“We believe that there was a serious breakdown in discipline on the part of members of the prison staff.
We believe that medical attention in some cases was delayed and inadequate.
We feel that these matters necessitate a full and immediate enquiry by H.M. Inspectorate of Prisons and appropriate action where necessary be taken.”
(18) In his affidavit sworn on the 18th October, 1988, Mr. Jackson stated that he was aware that 55 civil actions have been instituted (46 in the High Court and 9 in the County Court) and that in addition 7 letters have been received from solicitors claiming damages in respect of mistreatment arising out of the alleged incidents and that a small number in the County Court had been heard and dismissed and that one of the actions had been heard in the High Court and judgment was at the date of swearing of the affidavit awaited.
(19) This was the judgment in the case of Pettigrew v. Northern Ireland Office and the Governor of Her Majesty’s Prison, the Maze , which was given by Lord Chief Justice Hutton on the 17th November, 1988.
(20) The actions in the County Court which were taken by other prisoners and dismissed would appear to be those set forth in the Schedule exhibited in Brian Pettigrew’s affidavit.
(21) In Pettigrew’s case , the plaintiff, Brian Pettigrew, claimed damages for assaults and batteries which he alleged were committed against him when
he was being moved from his cell in H-Block 7, searched in H-Block 7 and then moved from H-Block 7 to H-Block 8. These assaults included assaults by prison officers and being bitten by dogs under the control of their handlers. The fact that such assaults occurred or that medical attention was not available was denied by the dog handlers and the prison officer in charge.
(22) In the course of a very detailed judgment in which he reviewed all the relevant evidence, Hutton L.C.J. stated, inter alia:
“The prison officers in H-Block 7 and H-Block 8 knew that one of their colleagues had died in the course of the escape attempt by the prisoners from H-Block 7; that in H-Block 7 another prison officer had been shot in the head and been seriously wounded; and that other prison officers had been injured; and they also knew that some of the prisoners who remained in H-Block 7 had helped the prisoners who did escape. I have no doubt that the mood of the prison officers who received the prisoners on their arrival in H-Block 8 was one of anger, that the atmosphere was tense, and that the main concern of the prison officers was to get the prisoners locked in their cells in H-Block 8 as quickly as possible and to ensure that there was no further outbreak of trouble on the part of the prisoners.
I am satisfied by reason of the medical evidence and other evidence that a number of prisoners were bitten by dogs on the move between the two blocks.
I think it is more likely that the handlers, under the influence of anger, deliberately failed to restrain the dogs as they should have done and allowed them to lunge at prisoners, in some instances sufficiently to bite or nip the prisoners, and I think that the dogs may have become more excited and aggressive and that the handlers may have exercised less restraint as the movement of prisoners progressed.
In the particular circumstances of this case as I am satisfied that there was a strong feeling of anger and hostility among the prison officers towards the remaining prisoners in H-Block 7, as I am satisfied that the plaintiff was bitten as he alleged because prison officers who were dog handlers did not exercise proper restraint, as I am satisfied that the plaintiff’s evidence that he was bitten was truthful, and as I am satisfied that a number of the prison officers who gave evidence about the actions of the dogs between H-Block 7 and H-Block 8 must have lied in the witness box, I consider as a tribunal of fact that there is also probably some truth in the plaintiff’s allegation that he was kicked and punched and I hold on the balance of probabilities in this particular case that the plaintiff was assaulted by being kicked or punched at some stage or stages in the course of moving from his cell in H-Block 7 to H-Block 8, although parts of his evidence as to the physical attacks upon him may well have been exaggerated.”
(23) Having regard to the findings of Hutton L.C.J. in Pettigrew’s case and his comments with regard to the manner in which the case was presented by the defence, it is probable that the dismissals by the County Court of six cases brought by prisoners arising out of the same or similar incidents were procured by perjured testimony on the part of the prison officers concerned.
(24) I am satisfied that, in the aftermath of the escape, prisoners were mistreated and assaulted. From the 26th September, 1983, until the 30th September, 1983, the day after the funeral of prison officer Ferris, they were deprived of medical attention and access to a solicitor. This was due to actions on the part of the prison officers and to the decision of the Maze branch of the Prison Officers Association to withdraw certain services until after the funeral, contrary to the requests of the prison Governor and the Northern Ireland Office.
(25) No evidence has been adduced on behalf of the applicant to suggest that since the resumption of normal working conditions in the prison, there has been any mistreatment of prisoners or any denial of access to proper medical treatment or legal advice. Indeed the contrary would appear to be the case as evidenced by the fact that 55 civil actions have been instituted by prisoners against the Northern Ireland Office and the Governor of Her Majesty’s Prison, The Maze, arising out of these incidents.
(26) Though no action has been taken against the prison officers concerned, it appears from Mr. Jackson’s affidavit, sworn on the 18th October, 1988, that the Director of Public Prosecutions to whom an interim report had been submitted had requested a report on the outcome of the Pettigrew case .
(27) In his oral testimony, Mr. Jackson stated that, in view of the findings of the Lord Chief Justice, consideration was being given to appropriate action against such prison officers who had been guilty of assault and perjury and to the question of compensating such prisoners who lost their cases because of such testimony.
(28) I accept from the evidence available to the court that there was a conspiracy by certain prison officers to subvert the course of justice by denying that assaults on prisoners had taken place, by denying that medical treatment was not available to prisoners during the period of the 26th September, 1983, to the 30th September, 1983, and to commit perjury in support of such denials if necessary.
(29) I accept however the evidence of Mr. Jackson that the Northern Ireland Office was not in any way a party to such conspiracy or to any deliberate concealment of the facts relating to occurrences in the Maze Prison in the aftermath of the escape. It had directed an inquiry into such occurrences by the Governor of the prison and the Chief Constable of the R.U.C. but the prisoners refused to co-operate with such inquiries, as did the prison officers.
It is submitted on behalf of the applicant that having regard to the treatment inflicted on prisoners, including recaptured prisoners, in the aftermath of the escape, consisting of assaults and ill-treatment and a denial, for a period, of medical treatment and access to a solicitor and having regard to the fact that prison officers who had been responsible for such treatment and who had denied under oath that such ill-treatment had occurred were still employed in the prison services, without having been disciplined in any way for such behaviour, that there is a reasonable probability that if returned to Northern Ireland, he would be subjected to similar treatment particularly because of the threats alleged to have been made to him by prison officers Kerr and Wright as deposed to in his affidavit.
As in Russell v. Fanning [1988] I.R. 505, the evidence adduced on behalf of the applicant in this case stops short of alleging or establishing the existence of a practice of ill-treatment or the use of unlawful violence by prison staff against prisoners in the Maze Prison. The evidence adduced on behalf of the applicant relates to a particular period in September, 1983, in the aftermath of a mass escape in which prisoners inflicted considerable violence on certain members of the prison staff, thereby provoking an unjustifiable reaction by certain prison officers. There is no evidence that since September, 1983, there have been any assaults on prisoners or any deprivation of their rights.
In his affidavit sworn on the 20th June, 1988, Mr. Jackson sets forth in detail the rights of prisoners detained in the Maze Prison and the avenues open to them if such rights are in any way infringed. Many of the prisoners whose rights are alleged to have been infringed in the aftermath of the prison escape have taken proceedings and, having regard to the findings of the Lord Chief Justice in Pettigrew’s case , it is unlikely that perjured testimony will be permitted to defeat any legitimate claims by prisoners.
Having regard to the lapse of time which has occurred since the outbreak took place, the civil proceedings for damages which other prisoners are now prosecuting and the publicising of the allegations against the prison officers in these proceedings and in the present proceedings, it is reasonable to assume that the applicant will not, if returned to Northern Ireland, be subjected to the ill-treatment and deprivation of constitutional rights which he fears. It has not been established to my satisfaction as a matter of probability that if returned to Northern Ireland the applicant’s right to bodily integrity would be endangered or that he would be denied the right to medical treatment and access to a solicitor or that he would be detained in a prison where the rule of law did not apply. He further alleged that his right to life would be endangered. This claim was based on the applicant’s testimony that in April, 1983, two prison officers Wright and Kerr threatened the applicant that if any of their prison officer men were injured during attacks of protest, then he, the applicant, would be taken out by them and executed. It is also based on the fact that in the official report on the escape of the 25th September, 1985, the applicant was identified as being involved in the death of prison officer Ferris who died during the escape. The evidence also establishes that prison officer Kerr was murdered by the I.R.A. in February, 1985, and that prison officer Wright resigned from the service in July, 1985. Neither of the members of the staff whom the applicant alleges threatened his life are now in the Maze Prison. In addition it has now been established that the immediate cause of prison officer Ferris’ death was heart failure and there is in my opinion no reasonable basis for the applicant’s apprehension that revenge would be exacted on him by members of the prison staff for his part in the escape. Consequently, I am not satisfied that his right to life would be endangered if returned to Northern Ireland and the Maze Prison.
In his affidavit sworn on the 20th June, 1988, Mr. Jackson sets forth in detail all particulars with regard to the treatment of prisoners in Her Majesty’s Prison, The Maze, the law applicable thereto and the rights of the prisoners. Having considered same I am satisfied that if returned to Northern Ireland there would be no breach of the applicant’s constitutional rights, cultural or otherwise.
It is further submitted on behalf of the applicant that he should not be returned to Northern Ireland because the offences to which the warrants relate are offences which could be tried within this jurisdiction by virtue of the provisions of the Criminal Law (Jurisdiction) Act, 1976. In my opinion this is not a factor to which I can have regard, as it is not within the province of a court to decide where any particular proceedings under that Act should be brought. Consequently I refuse the application of the applicant for release on all grounds.

Gannon J.
These are two different applications by Dermot Finucane which, at his request and with his consent, are both taken together. He applies under Article 40 of the Constitution upon complaint of unlawful detention for an order for his release in defence of his constitutional right to liberty of his person. An application under Article 40 of the Constitution is not necessarily concerned with the exercise of the executive power of the State, but in this present instance it is that aspect which is of concern to the court. He applies under s. 50 of the Extradition Act, 1965, as a person arrested under warrant issued from one of the places specified in s. 41 of that Act for a direction that he be released on the grounds set out in sub-s. 2 (a) of section 50. A court direction under s. 50 is a function ancillary to the exercise of the executive power of the State and arises only in relation to alleged extra-territorial criminal offences. In aid of the executive the court may be called upon to form an opinion and, if appropriate, give a direction which will be binding on the executive. Fundamental to every extradition proceeding is the existence of agreement between this State and a recognised sovereign authority of another state. Great Britain is the sovereign authority in relation to the places named in s. 41 of the Act of 1965. Under present legislation the other party to the agreement between states, although obviously affected by the course and consequence of the application, is not a participant in the hearing before the court.
The affidavits sworn by Mr. Finucane in support of both applications were opened in part to the court, the omitted portions being argumentative matter and not containing admissible evidence. Mr. Finucane was cross-examined on his affidavits and was re-examined on matters arising therefrom. The deponents by whom affidavits were sworn on behalf of the defendant and the respondent were made available for cross-examination and some gave oral evidence accordingly. Mr. Finucane’s oral evidence related only to events within the jurisdiction of this State. He did not give any evidence of facts or of circumstances in Northern Ireland nor, in particular, in the Maze prison. I am not satisfied his recollection of the time of and the events which followed his descent from the attic in Kiernan’s house up to and including the reading to him of the Northern Ireland warrants in Granard garda station is entirely reliable. The doubts in my mind were initially raised by his reaction to questions about his “unreliable watch”, his estimates of time, and his reference to his arrest as being referred to by gardai as “under s. 30 on suspicion of being a member of a proscribed organisation.”
That last expression was not used by the gardai giving evidence and is not normally used in my experience by garda witnesses. My impression of Garda James Lee as a witness is that he was frank, forthcoming and entirely honest. On the points of difference between his evidence and that of Mr. Finucane I prefer the evidence of this garda.
In reference to the submission that the detention of Mr. Finucane for the extended period under s. 30 as amended was for the purpose of having him available upon the arrival of expected Northern Ireland warrants I find no support for this in the evidence. I accept as entirely truthful the evidence on this aspect of Chief Superintendent Albert McDonagh. In the course of his evidence he said that from the very outset his only concern was the crimes believed to have been committed within this jurisdiction, and that he did not consider at all any question of crimes committed in any other jurisdiction. I believe the correct inference from the evidence to be that the gardai were concentrating on finding evidence in relation to the crimes they suspected had been committed in this jurisdiction up to the time of informing Mr. Finucane of his release, and that they were not concerned about warrants from Northern Ireland. I find support for this conclusion in the fact that Mr. Finucane was held in lawful custody under s. 30 of the Offences Against the State Act, 1939, up to the latest permissible time. That was approximately one and a half hours after the Chief Superintendent became aware of the Northern Ireland warrants. Upon receipt of authentic warrants duly endorsed from Northern Ireland the gardai were obliged to take into custody and detain Mr. Finucane in execution of those warrants and to proceed according to the Extradition Act. This they could have done while, and notwithstanding, he was in lawful detention pursuant to s. 30 of the Offences Against the State Act, 1939: In re Ó Laighléis [1960] I.R. 93. I accept the evidence of the gardai that care was taken not to detain Mr. Finucane one minute longer under s. 30 than was permitted by law. I am also satisfied from the evidence that the gardai took care not to hold Mr. Finucane in simultaneous detention under two different procedures in order to protect the formal distinction between detention pending charge with offences suspected to have been committed in this jurisdiction and detention pursuant to warrants from outside the jurisdiction.

In the course of the judgment of the President in these proceedings he has outlined with careful detail the evidence on both the s. 50 application and the Article 40 inquiry. I adopt the findings of facts and the inferences therefrom which he has set out on both aspects of these proceedings. Considering all the evidence given by Mr. Finucane and the various gardai I find there is no factual basis sufficient to support the submissions that there was infringement of the constitutional rights of the applicant by unlawful detention.
A second aspect of the application for release under Article 40 of the Constitution is founded on the observation by the Chief Justice in the course of his judgment in Russell v. Fanning [1988] I.R. 505. That, too, was an extradition application, and at p. 531 of the report the Chief Justice is quoted as follows:
“The plaintiff’s case is that in the light of the uncontradicted evidence of these prisoners the only conclusion that the learned trial judge could draw from the evidence before him was that there was a probability that if the plaintiff was returned to Northern Ireland to await trial on the charges contained in the warrants then on return to prison he would be subjected to the same treatment. I would accept that if a court upon the hearing of an application to set aside an order for delivery under the Extradition Act, 1965, were satisfied as a matter of probability that the plaintiff would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment, that it would, in order to protect the fundamental constitutional rights of that plaintiff be obliged to release him from detention and to refuse to deliver him out of the jurisdiction of these courts.”
On this application Mr. Finucane in his affidavit endeavoured to show that the dignity of his person, which under our Constitution would be protected and vindicated by these courts, would be infringed if he were returned to the prison from which he escaped. At no stage in evidence or in argument was there any suggestion that he would be subjected to torture nor was there any basis for it. No reference to this aspect of his application was made in his oral evidence, but Mr. Carol Jackson, the former Director of Regimes of the Prison Department of the Northern Ireland Office was cross-examined in matters pertinent to this aspect of the application under Article 40 of the Constitution. The cross-examination elicited the existence and nature of records kept at the Maze Prison and photocopies of relevant extracts from these were made available to the court by the Northern Ireland Office and were identified by Mr. Jackson. In conjunction with these reliance was placed on findings of fact extracted from the judgment of Hutton J. (as he then was) in an action for damages for assault taken in the High Court in Northern Ireland by Brian Pettigrew. That plaintiff was a fellow prisoner with the applicant Dermot Finucane on the day of the escape from the Maze Prison but Pettigrew did not escape. It has been demonstrated by these sources that the escape was carried out by the violent use of force by a number of prisoners in conformity with what must have been a well organised plan. Some of the prison officers were stabbed, two were shot and very many kicked and beaten. One of those stabbed, a Mr. Ferris, died of a heart attack during the escape and his burial took place on the Thursday following. At that time it was mistakenly believed by the prison staff that Mr. Ferris had been stabbed and killed by the applicant. In the immediate aftermath of the escape prisoners were brutally treated by prison staff who also refused to assist in making medical assistance available to prisoners who were injured. The maltreatment of prisoners and the withdrawal of facilities for them by prison officers lasted for about four days. Enquiries into these matters were undertaken by the Deputy Governor of the prison and by the R.U.C. but neither prison officers nor prisoners would co-operate with such enquiries. Civil actions for damages were unsuccessfully taken by six prisoners for assault by dogs handled by prison officers. It transpired from the successful action taken by Brian Pettigrew that in the earlier actions false evidence had been given by prison officers. The contents of the prison records shown to this court on this application make it clear that the true facts could and should have been known to those under whose direction and control those prison officers were at the time of the assaults and of the several court hearings.
From such facts it has been urged upon this court that we should accept as a matter of probability that if the applicant be now returned to the Maze Prison he would there be subjected to assault and inhuman and degrading treatment in contravention of the basic human rights protected by the Constitution of this State. It is now five and a half years since the traumatic events of the prison escape during which period it is clear there has been a disgraceful concealment by perjury of the true form of the reaction of the prison officers to the escape. Some of the other prisoners who escaped with Mr. Finucane have been recaptured and returned to the Maze Prison. But there is no evidence before this court that subsequent to September, 1985, any prisoners have been subjected to assault or to any other form of ill-treatment which could fall within the concept of breaches of fundamental rights. We have been asked to assume that prison officers who resorted to perjury to avoid disciplinary action against them, and the authorities who should have known that the prison officers did so, will as a matter of probability subject this applicant to treatment inconsistent with the rights protected by the courts of this jurisdiction. I do not propose to outline here the evidence given to this court which has been set out fully in the judgment of the President. Having considered carefully that evidence it is my opinon such evidence as has been presented to this court on this Article 40 application falls far short of what might be the minimum to discharge the onus of establishing as a probability the denial to the applicant in the future of his human rights or the absence of reasonable protection of them in the event of his extradition. One of the tests of probability is that suggested by O’Hanlon J. in Russell v. Fanning [1988] I.R. 505, namely, a practice in the past of the anticipated unlawful conduct. I do not think this is necessarily the only test of probability of future conduct. An alternative was suggested in argument namely that the prison officers with the strength of their union can dictate the manner of control and government of prison routine and discipline. But even this falls short of what would satisfy as a probability because I am not prepared to assume, as appears to be implied, that the prison officers union would authorise or stand over a repetition of the degree of indiscipline which pertained between the date of death of Mr. Ferris and his funeral. Neither could I properly assume that the Northern Ireland Office could not and would not try to prevent any such indiscipline in the future, the contrary being more likely as a consequence of the Pettigrew case disclosures.
On this application under Article 40 of the Constitution the applicant comes before this court as a person who has been convicted of and sentenced for a criminal offence and who escaped from the prison to which he was lawfully committed to serve his sentence. The evidence offered to this court is insufficient to discharge the burden of proof which such circumstances cast upon him. His application for an order of release under Article 40 of the Constitution should in my opinion be refused.
The application for a direction under s. 50 of the Extradition Act, 1965, raises for consideration the facts and circumstances upon which this court is asked to conclude that some one or more of the offences on the seven warrants endorsed for execution is a political offence or an offence connected with a political offence. Six of these warrants relate to intended charges of assaults on prison officers and the taking of a motor vehicle at the time and for the purpose of making his escape from the Maze Prison on the 23rd September, 1983. The seventh warrant relates to the charge of escaping from that prison in which he was serving a sentence imposed following his regular trial and conviction of charges of possession of firearms and a quantity of ammunition with intent to endanger life or damage property on the 20th August, 1981. The offences for which the warrants have issued and upon which the extradition of the applicant is requested were all committed outside the jurisdiction of the courts of this State. As I follow the arguments advanced by Mr. MacEntee and Mr. Hardiman on behalf of the applicant they submit that those offences are political in the sense, recognised historically by the courts, that they were committed with the intention that they would effect political change in the state in which they were committed. Such was the personal motivation of the applicant and the purposeful effect sought by his actions which constituted the offences allegedly committed by the applicant. They argue that it is immaterial to an application under s. 50, sub-s. 2 of the Act of 1965 that in the commission of such allegedly political offences he also commits offences contrary to the law of this State for which, had they been committed here, he would be amenable to trial and punishment. As the law of this State stands he may not be tried or punished here for arrogating to himself elsewhere an authority exclusively retained to this State under the Constitution. The argument appears to be that if the offences with which he is charged, but on which not yet tried, are to be seen as subverting the Constitution or usurping the functions of any organ of this State established by the Constitution he should first be put on trial in this State for such subversive treasonable and unconstitutional action. The submission, as I understand it, is that if the direction requested under s. 50 is to be refused because the court considers the action which, when committed in the requesting state, was, in relation to that state, a political offence, but at the same time amounts to a treasonable seditious or other anti-constitutional crime against this State, such refusal imports an evaluation and condemnation without trial of the actions of the applicant in respect of offences against this State with which he is not charged.
These arguments appear to be directed to overcoming the difficulty presented to the applicant’s claim under s. 50 by the judgment of the Supreme Court in Russell v. Fanning [1988] I.R. 505. In the course of his judgment the Chief Justice said at pp. 529-530 as follows:
“It was submitted on behalf of the plaintiff, firstly, that this Court should overrule its decision in Quinn v. Wren [1985] I.R. 322 and, secondly, that it was possible to distinguish on the facts the case of Quinn v. Wren from the present case. I see no reason to alter the view expressed by me in Quinn v. Wren and I am satisfied that the principles laid down in that case must be applied. Those principles are that the Extradition Act, 1965, having been passed since the coming into force of the Constitution, the first and fundamental rule which governs the interpretation of it must be the presumption that the Oireachtas intended by its provisions not to offend against any express or implied provision of the Constitution. The meaning of “political offence” within the provisions of s. 50 of the Act of 1965 cannot therefore be construed as granting immunity from extradition to a person charged with an offence the purpose of which is to subvert the Constitution or usurp the functions of the organs of State established by the Constitution.”
He went on to say at p. 530:
“For a person or group of persons, however, to take over or seek to take over the carrying out of a policy of re-integration decided upon by himself or themselves without the authority of the organs of State established by the Constitution is to subvert the Constitution and to usurp the function of government. In my view, “political offence” within the meaning of s. 50 of the Extradition Act, 1965, cannot be construed so as to grant immunity to a person who by his own admission has, in respect of the matters with which he is charged, that objective. This ground of appeal must therefore fail.”
On the 25th September, 1983, Robert Peter Russell the plaintiff in the case cited was a prisoner in the Maze Prison serving a sentence imposed upon his conviction on the 15th November, 1982, of the attempted murder in Belfast on the 17th May, 1978, of a detective superintendent of the R.U.C. He was one of the number of prisoners who made their escape from the prison at the same time as the applicant here, Mr. Dermot Finucane. Russell also became a fugitive within this jurisdiction and was arrested in Dublin on the 25th May, 1984, on foot of Northern Ireland warrants charging him with a number of offences arising out of the escape from the Maze Prison in which Mr. Finucane took part. Russell’s application for a direction under s. 50 of the Extradition Act, 1965, was refused by O’Hanlon J. who followed the decision of the Supreme Court in Quinn v. Wren [1985] I.R. 322. Russell appealed from that refusal to the Supreme Court where his appeal was refused by a majority decision. All the facts and circumstances of Mr. Finucane’s case correspond so closely with those in the case of Robert Peter Russell that the opinion of this court of whether or not to make the direction now sought under s. 50 of the Act of 1965 must follow fully the ruling of the Supreme Court in Russell’s case . Having regard to the decision of the Supreme Court in McMahon v. Leahy [1984] I.R. 525, cited in argument on behalf of the applicant, it would seem that because of the correspondence of facts and circumstances of the instant case with those in Russell v. Fanning [1988] I.R. 505, this court should refuse the direction sought under s. 50 as did the Supreme Court in Russell’s case .
Insofar as the decision in McMahon v. Leahy [1984] I.R. 525 was cited as an authority to support an argument that the courts or the State are bound by estoppel I think that argument is unsound. The implication of that argument, having regard to the facts disclosed in that case, seems to be that the Supreme Court adopted and followed four previous High Court decisions regardless of whether they were correct in law. I do not read the judgments in that case as being founded upon an estoppel against the State. I think the judgments in that case were founded upon the constitutional obligation on the courts in the administration of justice to treat all people equally where circumstances are the same and the legal principles applicable are the same. It seems to me that the concept of estoppel would be entirely inappropriate to a claim for a direction under s. 50 of the Act of 1965, because extradition is founded upon an agreement between states. The application to the court is an application by the executive in aid of its obligation under the agreement to the other state and the latter is not represented at the hearing of the application in court. Accordingly, I am of opinion that each application under s. 50 is in the nature of a request to the court by either the person sought to be extradited or by this State as to how the law as stated in that section is to be applied to the facts and circumstances of each particular case. The interpretation of the law as enacted in s. 50 of the Act of 1965 is governed by the judgments of the Supreme Court. The judgment of the High Court in each case must accord with the law as it is at the time the judgment is given, namely when the opinion is formed as to whether or not to give the direction sought.
To evade the inevitable application of the judgments of the Supreme Court in Russell v. Fanning [1988] I.R. 505 to this case it was submitted in argument to this court that the law had undergone change, not by legislative amendment but by judicial decision, by, and subsequent to, the Supreme Court decision in McGlinchey v. Wren [1982] I.R. 154. It was argued that the interpretation to be given to s. 50 by this court should now correspond with the interpretation which had been given to it prior to August, 1981, being the time when the applicant was engaged in the activity which resulted in his trial and sentence which he was serving at The Maze on the 25th September, 1983. Support for this reasoning was sought in the remarks of O’Higgins C.J. in his judgment in McMahon v. Leahy [1984] I.R. 525 at p. 538:
“Finally, I cannot ignore the fact that the State, by its attitude and conduct in relation to the earlier proceedings taken under the Act of 1965, must have encouraged in the plaintiff a belief that he could reside with confidence, and find a way of life, within this State, secure in the knowledge that he would always be entitled to the same treatment as that accorded to his co-escapees. Such a belief may well have led him to fashion his life accordingly and, in particular, to make him complacent, if not regardless, of the need to prove the political nature of his escape. Now, over eight years after the event, he has justification for saying that supportive evidence of his claim is no longer available to him. He has, accordingly, in relation to the issue raised by the State, been put by the conduct, attitude and representations of the State, at a considerable disadvantage.”
It was submitted that the applicant Mr. Finucane was encouraged in the belief, and had a legitimate expectation, that by reason of the course of the decisions in the Irish courts on the interpretation and application of s. 50, sub-s. 2 of the Act of 1965 prior to August, 1981, he could reside with confidence within this State secure from extradition to serve out the sentence which had been imposed upon him. Apart from the absence of evidence of supporting facts and of merit in this line of reasoning I am of opinion that it is erroneous in law. In making our determination on this application as to whether or not to give the direction sought by Mr. Finucane we must state our opinions in accordance with the law as it now is.
For the reasons stated in the judgments of the Supreme Court in Russell v. Fanning [1988] I.R. 505 and the interpretation given therein to s. 50, sub-s. 2 of the Extradition Act, 1965, I am of opinion that this application for a direction under that section must be refused.

Costello J.
I agree.

The applicant appealed to the Supreme Court from the judgment and order of the High Court.

Finlay C.J.
13th March 1990

This is an appeal brought by the applicant against the order of the High Court dated the 7th April, 1989, dismissing both his claim for release pursuant to s. 50 of the Extradition Act, 1965, and his claim for release pursuant to Article 40 of the Constitution.
The applicant was convicted at the Crown Court in Belfast of having had in his possession on the 20th August, 1981, two rifles and a quantity of ammunition with intent by means thereof to endanger life or cause serious injury or to enable any other person by means thereof to endanger life or cause serious injury to property, and was, on the 14th June, 1982, sentenced to eighteen years imprisonment.
On the 25th September, 1983, the applicant escaped with others from the Maze Prison in Northern Ireland. His delivery to Northern Ireland is now sought on a number of warrants relating to offences alleged to have been committed in the course of that escape, and on a warrant requiring him to serve the unexpired balance of the sentence already imposed upon him.
Application pursuant to Article 40
I will first deal with the application pursuant to Article 40 of the Constitution. This was submitted both in the High Court and on this appeal upon the following grounds, that is to say:
“The Court would be failing in its duty to protect his fundamental constitutional rights if it permitted his return to Northern Ireland to serve the balance of his sentence in the Maze Prison where, it is alleged, there is a probability that he would be subjected to assaults and inhuman treatment by prison officers and would be subject to a prison regime which permits its staff, either personally or with dogs to assault prisoners, to deprive them of or delay access to doctors or solicitors, to commit perjury, to be unco-operative with enquiries or with investigations conducted by the Northern Ireland Office, the Governor of the prison or the Royal Ulster Constabulary, without being disciplined.”
This submission is largely based on the judgment of this Court in Russell v. Fanning [1988] I.R. 505, where, at p. 531 in the course of my judgment I stated:
“I would accept that if a court upon the hearing of an application to set aside an order for delivery under the Extradition Act, 1965, were satisfied as a matter of probability that the plaintiff would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment, that it would, in order to protect the fundamental constitutional rights of the plaintiff, be obliged to release him from detention and to refuse to deliver him out of the jurisdiction of these courts.”
Counsel for the applicant in part relied upon this principle, but submitted that some lesser standard of proof than probability was appropriate in the application of the principle and suggested that it would be more correctly stated as being only necessary for an applicant in order to obtain the protection of this rule to establish a “real danger” of such events occurring. This particular submission was based upon the fundamental nature of the constitutional rights involved and upon the finality of permitting delivery out of the jurisdiction which of necessity prevented further protection of constitutional rights by the Court.
The duty of the Court “as far as practicable to defend” the constitutional rights of the applicant may not necessarily be best served by any rigid formula of standard of proof. I am satisfied that what is necessary is to balance a number of factors, including the nature of the constitutional right involved; the consequence of an invasion of it; the capacity of the Court to afford further protection of the right and the extent of the risk of invasion. Upon the balancing of these and other factors in each case, the Court must conclude whether its intervention to protect a constitutional right is required and, if so, in what form.
The primary facts concerning this issue were proved by affidavit and by oral evidence in the High Court. In the course of their judgments, with each of which Costello J. agreed, Hamilton P. and Gannon J. set out in convenient form the facts which they found arising from this evidence. In addition, certain other facts of somewhat less importance for the issue here arising were established in uncontested evidence. The learned trial judges then proceeded to raise inferences from the facts as found by them. I am, it seems to me, on this appeal obliged to consider and, if appropriate, to review those inferences. The facts so found or established can thus be summarised.
1. Thirty-eight prisoners escaped from H-Block in the Maze Prison into the grounds of the prison, and most of their number escaped from the prison itself, imprisoned a number of prison officers and, in effect, fought their way out of the prison.
2. In the course of the escape prison officer Ferris was stabbed and died from a heart attack. Lord Lowry L.C.J., as he then was, in the trial of a number of accused in respect of charges arising out of the escape, held that he could not be satisfied beyond a reasonable doubt that the stabbing was the cause of the heart attack.
3. The applicant was, in an official report on the escape made in 1985, identified as one of the persons involved in the attack on prison officer Ferris.
4. Four other prison officers were stabbed; two prison officers were shot; thirteen prison officers were kicked and beaten; and forty-two were subsequently off work with nervous disorders.
5. The applicant gave evidence that before the escape he was threatened by two prison officers, whom he named, with being taken out and executed if in protests or prison disturbances any member of the prison staff was injured. Of these two named persons evidence was given that one had been murdered by the I.R.A. and that the other was still alive, though retired from the prison service. No evidence was tendered on behalf of the surviving prison officer denying the accusation of the making of a threat.
6. Immediately after the escape a great number of I.R.A. prisoners remaining in H-Block were assaulted by prison officers, including assaults by dogs handled by prison officers, on being moved to a different prison block.
7. Medical and legal assistance was not made available upon request to the prisoners who had been assaulted for about four days after the date of the assault, and this was due to action taken by the prison staff out of what they said was respect for the death of their colleague, prison officer Ferris.
8. The prison officers refused to co-operate with every form of enquiry into the allegations of assault by them in the aftermath of the escape, and clearly at an early stage entered into a widespread conspiracy to deny absolutely all accusations of assault or ill-treatment, and also to deny the refusal of requests for medical assistance.
9. These denials were maintained by the authorities who were the named defendants in claims made by the prisoners for damages for assault. This denial appears to have been made despite the existence of a number of reports of investigations by different bodies and persons, including the Board of Prison Visitors which, while incomplete due to the non-cooperation of both the prison officers and of the prisoners themselves, must be read as being strongly indicative of the existence of some major breach of discipline and some form of ill-treatment or assault.
10. The conspiracy was finally uncovered in a trial of a claim made by one of the prisoners, Pettigrew, before Hutton J. (as he then was) when documents which had earlier not been revealed were produced by counsel acting on behalf of the defendants which clearly indicated the absolute falsity of the denial of unsatisfied requests for medical assistance, and which led the learned trial judge in that case to conclude, having regard to the medical evidence adduced as well, that the denials of the actual assaults were also false. What he there described as the conspiracy to cover up the assaults in defeasance of these claims, he strongly condemned.
11. Although since the time of the judgment in Pettigrew v. Northern Ireland Office [1989] 3 B.N.I.L. 83 in 1988, ex gratia payments are being offered to prisoners whose claims had previous to that time been dismissed by reason of the false evidence given against them, and although other pending claims, the evidence would indicate, are now being treated as assessments of damage, it would appear that no disciplinary action of any description has been initiated against any of the prison officers in relation either to the misconduct by way of assaulting prisoners or to their misconduct in attempting to pervert the course of justice. There does not appear to have been any criminal charge against any of the prison officers and, on the evidence, I would be driven to the conclusion that no disciplinary or criminal charge is likely in the future.
12. Many of the prison officers who were guilty of these assaults and this perjury are still serving in the Maze Prison, and none has been discharged from the service because of any part in this conduct.
13. Hutton J. in the course of his judgment expressed the opinion, with which I would agree, that one of the probable causes of these unjustified assaults was anger at the death of prison officer Ferris.
It was submitted by the respondents that the very fact that so many of the prisoners have now successfully brought their claims before the courts in Northern Ireland indicated that there was no ground for the applicant’s fear of invasion of his constitutional rights. I have no difficulty in accepting that if ill-treatment of any of the prisoners in the Maze Prison is brought to the notice of the courts in Northern Ireland it will be condemned and remedied. The very forthright and unequivocal language of the judgment of Hutton J. in the judgment which was before this Court in Pettigrew’s case amply supports such a belief. This Court has, however, as its primary obligation, the duty to prevent such invasions of the applicant’s rights and it is not a sufficient discharge of that duty for it to rely upon the vindication of those rights by compensation after they have been invaded.
Having carefully considered the findings of fact made by the High Court and the uncontested evidence before it, I have come to the conclusion that there is a probable risk, if the applicant were returned to the Maze Prison in Northern Ireland, that he would be assaulted or injured by the illegal actions of the prison staff. In reaching this conclusion I have been particularly influenced by the fact that he has been, rightly or wrongly, identified as being involved in the attack on prison officer Ferris, which, it is reasonable to assume, members of the prison staff may well still associate with his death, notwithstanding the ruling in the criminal case. If they do, the total absence of any repercussions on the staff as a result of the ill-treatment of prisoners in the aftermath of the escape, and from that point of view the success of their conspiracy to cover up their conduct would appear to make the applicant, in my view, a probable target for ill-treatment.
The present detention of the applicant is in pursuance of an order of the District Court made pursuant to the Extradition Act, 1965, for the delivery of the applicant into the custody of the R.U.C. for the execution of warrants which include a warrant for the detention of the applicant in the Maze Prison to serve the unexpired balance of the sentence of eighteen years imposed on him on the 14th June, 1982. Having regard to the findings made by me I am satisfied that this Court should prohibit such delivery in order as far as practicable to defend the applicant’s constitutional rights which are protected by Article 40, s. 3 of the Constitution. His further detention therefore on foot of this District Court order would become unlawful.
Claim pursuant to s. 50 of the Extadition Act, 1965
With regard to the applicant’s claim for exemption in respect of a political offence pursuant to s. 50 of the Extradition Act, 1965, I have read the judgment which is about to be delivered by Walsh J. In so far as that judgment endorses the principle laid down by this Court in Quinn v. Wren [1985] I.R. 322, I agree with it and see no reason to alter the views expressed by me in that case.
In so far as it dissents from the application by the majority of this Court of that principle to the facts established in Russell v. Fanning [1988] I.R. 505 my position is as follows. I accept that any extradition case must be decided in the light of its own facts and circumstances and that the question as to whether the principle laid down in Quinn v. Wren [1985] I.R. 322 is applicable to any particular case depends on whether the activity constituting the offence charged or the conviction recorded, as the case may be, can legitimately be construed as subverting the Constitution and usurping or endeavouring to usurp the function of the government under the Constitution. The view expressed by Walsh J. in his judgment in this case, that the activity constituting the conviction of the applicant could not be so construed, is manifestly a decision reached after the most comprehensive and detailed consideration of all the relevant factors. It is a view which I am aware is supported by the majority of my other colleagues in this Court in this case.
In these circumstances, having regard to the fundamental nature of the issues which arise in extradition cases, I am satisfied that it would be consistent with the jurisprudence of this Court that I should accept this view so that the basic principles underlying it may clearly represent the decision of this Court. I would, therefore, allow the appeal and direct the release of the applicant.

Walsh J.
This is an application for the extradition of the applicant to Northern Ireland on foot of a warrant charging him with escaping from prison, the object of which is to return him to serve a sentence in the prison from which he escaped.
On the 14th June, 1982, the applicant was convicted in Northern Ireland on the charge of having guns and ammunition with intent to endanger life contrary to art. 17 of the Firearms (Northern Ireland) Order, 1981. The offence took place on the 28th August, 1981, and on the 14th June, 1982, the applicant was sentenced to eighteen years imprisonment. On the 25th September, 1983, he escaped from that imprisonment at the Maze Prison in Northern Ireland.
On the 5th October, 1987, twenty separate warrants for the arrest of the applicant were issued in Northern Ireland relating to offences alleged to have been committed by him during the course of the escape from prison. The warrants were sent to this jurisdiction for execution and were endorsed for execution by the respondent. He was arrested within this jurisdiction on foot of the said warrants and brought before the District Court, which in due course made orders of extradition in respect of each of the twenty warrants and also a twenty-first order of extradition on foot of another warrant for the arrest of the applicant which has been issued seeking his extradition to Northern Ireland to continue to undergo the prison sentence of eighteen years. Since then it has been made clear that it is now the intention of the Director of Public Prosecutions in Northern Ireland to prosecute only in respect of seven of the original twenty warrants in addition to the twenty-first warrant. Each of the seven warrants refers to incidents alleged to have occurred during the prison break.
The applicant brought proceedings in the High Court pursuant to the provisions of s. 50 of the Extradition Act, 1965, and also proceedings for an order pursuant to Article 40, s. 4, sub-s. 2 of the Constitution that his detention was not in accordance with the law. The cases were heard together in the High Court by a divisional court consisting of Hamilton P., Gannon and Costello JJ.
The applicant in an affidavit sworn on the 7th July, 1988, claimed that the offence in respect of which he was convicted in Northern Ireland, namely, possessing arms with intent to endanger life, was committed by him as a member of and on behalf of the I.R.A. of which he was a member of an active service unit and that the operation was directed against armed British soldiers who were on active service. In respect of the escape he claimed that as “a republican prisoner of war” it was his duty to escape and he had been instructed by the “republican camp staff” in the prison to escape. He also swore in the affidavit that the offence which was directed against the armed British soldiers who were on active service was confined to attempting to end British rule in Northern Ireland and that he did not have as an objective the subversion of the Constitution of Ireland nor the usurpation of the organs of State established by the Constitution. He made a similar averment in respect of the purpose of the escape. He also swore that the objectives of the I.R.A. in general were not to subvert the Constitution of Ireland nor to undermine by force the organs of State established by the Constitution.
The President of the High Court, in dismissing the applicant’s claim, drew attention to the fact that the I.R.A. is an illegal organisation in this jurisdiction by virtue of S.I. No. 162 of 1939 made pursuant to the provisions of s. 18 of the Offences Against the State Act, 1939. The learned President stated that he did not accept the truth of the averments made by the applicant in relation to the general objects of the I.R.A. The learned President took the view that the facts of the case were indistinguishable from those in Russell v. Fanning [1988] I.R. 505 and that he was bound by the judgment of the Supreme Court in that case, which had been delivered by the Chief Justice. In effect the learned President was saying that because the applicant was a member of the I.R.A., an organisation which he accepted as being one which had as its aims and objectives the overthrow of the organs of the State set up under the Constitution, that an act done in the furtherance of any of the aims of the I.R.A. could not qualify for the political exemption contained in the Extradition Act, 1965. Gannon J. in his judgment on this issue in the case also came to the conclusion that for the reasons stated in the majority judgment of the Supreme Court in Russell v. Fanning [1988] I.R. 505 that the political exemption was not available to the applicant. Costello J. also agreed with the reasons stated by his two colleagues.
On the question of the political exemption counsel on behalf of the applicant has urged that the Court ought not to follow its own decision in Russell v. Fanning on the grounds that the reason given by the Chief Justice for holding that the political exemption did not apply in the case of Russell was based on the unwarranted inference that the Oireachtas never intended the political exemption in provisions of the Extradition Act, 1965, to apply in respect of acts such as those alleged against Russell because such acts amounted to a violation of Article 6, ss. 1 and 2 of the Constitution and that such activities amounted to subversion of the Constitution and the usurpation of the functions of government.
For the sake of clarity it is best to quote the exact words used by the learned Chief Justice which appear at p. 530 of the report and which are as follows:
“The objectives for which, on the affidavits of the plaintiff, the attack was made on Detective Superintendent Drew and the objectives which were a factor in the escape by the plaintiff from the Maze Prison were to achieve the re-integration of the national territory by force of arms. The plaintiff states that he is a member of an organisation, the Provisional I.R.A., which intends to carry out that task. The Constitution and in particular Article 6, ss. 1 and 2 make it quite clear that, subject to the provisions of the Constitution, decisions as to the method by which the national territory is to be re-integrated are matters for the Government subject to the control of Dáil Éireann , and that the carrying out of these decisions is exercisable only by or on the authority of the organs of State established by the Constitution. Any person or group of persons is, of course, entitled to advocate a particular policy of re-integration, whether that is or is not consistent with the existing government policy from time to time. For a person or a group of persons, however, to take over or seek to take over the carrying out of a policy of re-integration decided upon by himself or themselves without the authority of the organs of State established by the Constitution is to subvert the Constitution and to usurp the function of government. In my view, “political offence” within the meaning of s. 50 of the Extradition Act, 1965, cannot be construed so as to grant immunity to a person who by his own admission has, in respect of the matters with which he is charged, that objective. This ground of appeal must therefore fail.”
The learned Chief Justice had earlier in the judgment agreed with the decision of O’Hanlon J. in the High Court in the same case that by reason of the decision of this Court in Quinn v. Wren [1985] I.R. 322 he was bound to interpret s. 50 of the Extradition Act, 1965, as excluding from the meaning of “political offence” offences committed for the purposes set out and with the aims and objectives set out in the plaintiff’s affidavit.
In Russell v. Fanning [1988] I.R. 505 the Court was asked to overrule its decision in Quinn v. Wren [1985] I.R. 322, which the Court declined to do. The decision in Quinn v. Wren was based on the reasoning that as the Extradition Act, 1965, was passed since the coming into force of the Constitution the first and fundamental rule which governed the interpretation of the Act must be the presumption that the Oireachtas intended by its provisions not to offend against any expressed or implied provision of the Constitution. The decision reasoned that it therefore followed that s. 50 of the Act of 1965 could not be construed as granting exemption from extradition on the ground of the political exemption in the Act to anybody charged with an offence, the purpose of which “is to subvert the Constitution or usurp the functions of the organs of State established by the Constitution.” As a statement of principle I think it cannot be questioned and is manifestly correct.
However it is well established that every extradition case must be decided in the light of its own particular facts and circumstances, and so the question must arise whether the particular activity for which the applicant was convicted in Northern Ireland and the escape subsequently made can legitimately be construed as subverting the Constitution and usurping or endeavouring to usurp the function of the Government under the Constitution. The activities under review in Quinn v. Wren [1985] I.R. 322 namely, the objective of the establishment of a”thirty-two County Workers Republic by force of arms” was an objective clearly aimed at the overthrow of the Constitution and the organs of government set up under the Constitution and, in the appropriate case, could be treasonable and in contravention of Article 15, s. 6 of the Constitution.
In Russell v. Fanning [1988] I.R. 505 the decision was to the effect that the activities impugned amounted to a violation of Article 6 of the Constitution. In the present case the respondents relied upon the decision of Russell v. Fanning [1988] I.R. 505 to govern the decision in this case on the point of whether or not the political exemption provision of the Extradition Act, 1965, was available to the present applicant.
The first thing to observe is that the decision of the High Court on this point was based essentially upon the fact that the I.R.A. is an illegal organisation in this jurisdiction upon the grounds set out in the statutory instrument already referred to, pursuant to s. 18 of the Offences Against the State Act, 1939. Yet the particular incident which led to the conviction of the applicant, and which is the activity that falls to be examined in the present case, was one which occurred outside the jurisdiction and was related to an episode involving the applicant and a member or members of the British Army. The learned President of the High Court declined to believe that the I.R.A. did not have as one of its objectives the overthrow of the Constitution of Ireland. The refusal to accept the claim to the contrary concerning the objectives of the I.R.A. cannot, without more, prove that the particular offence of the applicant had such an objective. In effect the case was decided upon the fact that he was a member of the I.R.A. and linked to its general objectives rather than on the particular activity in question which led to his conviction. Membership of the I.R.A. obviously does not attract the political exemption simply because of such membership in respect of any offence committed by any of its members. The nature and objective of the particular activity must be the test. Being a member of the I.R.A. does not by itself disqualify any activity of a member from the application of the political exemption. Quinn v. Wren [1985] I.R. 322 was decided upon the particular activities in question which were held to be aimed at the overthrow of the State. The same rule would apply to anybody or any group of persons, whether members of the I.R.A. or not, if their activities came within those the subject of consideration in Quinn v. Wren .
Members of the I.R.A. might be prosecuted and convicted outside the jurisdiction of this State for political activities totally unconnected with the re-integration of the national territory as, for example, connected with the political situation in other countries. In such an event, if the matter came before the courts here by way of an application for extradition, the matter would have to be examined as to its nature and motivation before deciding whether the political exemption should apply. Nobody may be extradited from this State in respect of any offence unless it can be done within the terms of the Extradition Act, 1965, the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, and the Extradition (Amendment) Act, 1987. The present case is governed only by the Act of 1965 but the body of legislation dealing with extradition must be looked at as a whole and in the light of the legislative history of the subject before deciding on whether the inference upon which Russell v. Fanning [1988] I.R. 505 was decided can be justified.
Northern Ireland is part of the national territory as defined by Article 2 of the Constitution. Pending the re-integration of the national territory Article 3 of the Constitution provides that the laws enacted by the Oireachtas shall have the State as the area and extent of their application and may have extra-territorial effect if the Oireachtas so enacts. Since 1920 emergency powers legislation has existed in Northern Ireland with recurring bouts of civil unrest resorted to from time to time by members of the local minority community in armed pursuit of apolitical philosophy of re-unification of Ireland. Since 1971 the I.R.A. has embarked upon a protracted guerilla campaign in pursuit of the same philosophy in the form of rural but more often urban guerilla activity which relies heavily on the use of firearms, bombing, intimidation and significant support from sections of the local population. This has been met by highly sophisticated measures of counterinsurgency especially designed to defeat political subversion and political violence. It is unnecessary to detail the breadth and extent of such military and non-military measures including, as part of the process, the criminalisation of the political violence with important changes in the substantive and procedural law of the area. The claimed objective of the I.R.A. is to inflict a military defeat or to demonstrate that the Government of the area is unable effectively to govern the area. As in the case of the forty or so other small wars which are going on in the world at the moment it is quite different from an open and declared inter-state war as envisaged by the Geneva Conventions, and from a numerical point of view the I.R.A. and its supporters would scarcely meet the criteria of the protocols to the Geneva Conventions relating to internal civil wars. However it would be quite unrealistic to regard the situation as other than a “war or a quasi war” to use the words of McDermott J. (as he then was) in what is known as the Patrick McElhone case on the 10th March, 1975, when he tried and acquitted a British soldier on a charge of murder at Belfast City Commission in a non-jury trial. When the case was referred to the House of Lords by the Court of Criminal Appeal of Northern Ireland in Attorney General for Northern Ireland’s Reference (No. 1 of 1975) [1977] A.C. 105 Lord Diplock, who read the leading speech, referred at p. 136 to the situation as “a state of armed and clandestinely organised insurrection against the lawful government of Her Majesty by persons seeking to gain political ends by violent means . . .”
On the 1st September, 1976, Dáil Éireann resolved pursuant to sub-s. 3 of s. 3 of Article 28 of the Constitution that “arising out of the armed conflict now taking place in Northern Ireland” a national emergency existed affecting the vital interest of the State. On the same day Seanad Éireann passed a resolution in identical terms. These resolutions are still in force. These resolutions pursuant to the said provision of the Constitution referred to “an armed conflict in which the State is not a participant” and it is unnecessary for the purpose of this judgment to consider whether that provision requires neutrality on the part of the State in respect of the conflict or whether or to what extent intervention of any sort is permitted. It is sufficient to note that the conflict affects the vital interest of this State and therefore the State must take such measures as it considers necessary to protect those interests within the State.
Three years prior to that resolution an agreement known as the Sunningdale Agreement had been reached following a conference between the Government of Ireland and the Government of the United Kingdom and other participants in the non-violent political life of Northern Ireland. It was agreed by the parties at that conference that persons committing crimes of violence, however motivated, in any part of Ireland should be brought to trial irrespective of the part of Ireland in which they were located. Different ways of solving the problem were discussed, among them were “the amendment of legislation operating in the two jurisdictions on extradition, the creation of a common law enforcement area in which an all-Ireland court would have jurisdiction, and the extension of the jurisdiction of domestic courts so as to enable them to try offences committed outside the jurisdiction.” It was agreed that problems of a considerable legal complexity were involved, and that the Irish and British Governments would jointly set up a Commission to consider all the proposals put forward at the Conference and to recommend as a matter of extreme urgency the most effective means of dealing with those who commit these crimes. In due course a body known as the Law Enforcement Commission was appointed jointly by the two Governments in December, 1973. The terms of reference of the Commission are to be found at p. 7 of the report of the Commission (Pr. 3832) made on the 25th April, 1974. The terms of reference expressly included a reference to the question of extradition and the subsequent report indicates that it was considered in considerable detail. In this context what the Commission was concerned with were offences which were then currently accepted as being political offences or offences connected with political offences within the meaning of the Extradition Act, 1965, with the view to qualifying the political exemption in its application to a schedule of specified offences by excluding from the exemption particular politically motivated offences involving violence. The Commission was informed by the Irish Government that it had been pointed out at the Sunningdale Conference by the representatives of the Irish Government that “it is a well recognised principle in international law that the extradition of a person accused of a political offence does not take place and that the Irish Government [did] not feel that a departure from a principle of international law so firmly established could be justified.” What emerged as a result of the Conference was legislation enacted by the Oireachtas and, in almost identical terms, legislation enacted by the Parliament of the United Kingdom providing for extra-territorial jurisdiction in the domestic courts. The Irish legislation, namely, the Criminal Law (Jurisdiction) Act, 1976, contained a schedule of offences for which persons could be tried here even though the offences were committed in Northern Ireland. The offences scheduled were the ones most commonly occurring for political motives although under the terms of the Act they are not confined to political motivation and are equally applicable to offences committed without any political motive. It has been pointed out by Mr. Colm Campbell in his learned article entitled “Extradition to Northern Ireland: Prospects and Problems” (1989) 52 M.L.R. 585, that in terms of securing convictions of fugitive offenders in respect of politically motivated crimes committed in Northern Ireland the Criminal Law (Jurisdiction) Act, 1976, has been conspicuously more successful than the extradition process. He further points out that the practical difficulties of the extradition method of dealing with the problem predicted in para. 71 of the report of the Law Enforcement Commission has been shown to have been correct.
It is thus clear that the Oireachtas chose not to legislate to qualify the political exemption contained in the Act of 1965 but, clearly recognising its application to politically motivated offences committed in Northern Ireland, instead chose to deal with the situation by means of the enactment of the Criminal Law (Jurisdiction) Act, 1976. The political exemption provision is still the law in this State and as a principle has remained unrepealed. In fact it has been reiterated in subsequent legislation concerning extradition, although abated in its application in certain cases as set out in the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, to give effect to the European Convention on the Suppression of Terrorism. The effect of the European Convention on the Suppression of Terrorism as adopted by our legislation has been, to put it in very general terms, to withdraw from the political exemption offences involving the use of explosives or automatic firearms (which by their nature tend to be indiscriminate in their effects) and any attempts at the same, and offences involving kidnapping, the taking of hostages or serious false imprisonment. It also withdraws the political exemption in respect of other matters which are not immediately relevant to the present case. Section 4 also enables a court to take into account any particular serious aspects of an offence including the collective danger to the life, physical integrity or liberty of persons or affected persons foreign to the motives behind it, or that cruel or vicious means were used in the commission of the offence. The references to “collective”, “persons foreign to the motives” and “cruel and vicious means” are recognised elements of terrorism. The court is empowered to form the opinion by reason of these elements that the offence could not properly be regarded as a political offence or an offence connected with a political offence. None of these is applicable to the present case and therefore it is unnecessary to consider them further. My object in referring to this recent legislation is to indicate that a distinction has been drawn between what is strictly regarded as terrorism and what is regarded as politically motivated offences or offences connected with political offences. Putting it briefly, political offences are defined as offences usually, though not necessarily, consisting of violent crime directed at securing a change in the political order. The effect of the adoption of the Council of Europe Convention was to enable derogation from what the Council of Europe in the report accompanying the Convention called “the traditional principle according to which the refusal to extradite is obligatory in political matters” in respect of certain acts of violence. It is thus clear that the use of violence does not in itself take an act out of the political exemption, but particular forms of violence such as those already indicated will be grounds for abating the political exemption. This will not effect any change in the distinction between pure political offences and relative political offences, as defined by Ó Dálaigh C.J. in Bourke v. Attorney General [1972] I.R. 36.
The Extradition Act, 1965, was modelled upon the provisions of the European Convention on Extradition and follows it closely. Article 3 of the Convention prohibited extradition in respect of offences which were regarded by the requested
party as political offences or offences connected with political offences. Article 26 enabled parties to make reservations in respect of article 3 but the Government of Ireland made no such reservation either in respect of events in Northern Ireland or elsewhere: and in the subsequent legislation based upon the Convention, namely, the Act of 1965, no such qualification was made. In our domestic law we do not recognise the existence of political exemption to offences committed within the State and triable within the State in respect of offences which are politically motivated. However, the legislative provision for the political exemption does apply in respect of those parts of the national territory which are not within the State, as well as to places outside of Ireland, subject to the qualifications to be found in the legislative provisions already referred to and to others not referred and not relevant to the present case.
It is quite clear that in international law indiscriminate attacks or killing of the civilian population is contrary to the laws of war and can be classed as crimes against humanity even if they have a political objective and are also acts of terrorism whether committed by a state or by those seeking to overthrow a state. A similar outlook is at the heart of the European Convention for the Suppression of Terrorism. Needless to say terrorism can exist without any political motivation such as where a section of the population is terrorised in the course of personally motivated banditry. The expression “terrorism” is frequently used as a blanket term for many violent acts ranging from pure terrorism to nationalist uprisings to achieve independence. For purely propaganda purposes it is frequently used to characterise activities disapproved of by the propagandists. Only a looseness of thought can equate it with violence as opposed to peaceful persuasion.”Terrorism has no agreed definition and its use is often a way of conveying disapproval rather than being descriptive.” (“Suppressing Terrorism under the European Convention, a British Perspective” by H.V. Lowe and J.R. Young XXV Netherlands International Law Review (1978) p. 305). The essential ingredients are instilling terror in the public or a section of it for the purpose of intimidating such persons and the indiscriminate nature of attacks which put in jeopardy the lives or safety of civilians or other persons unconnected with the objectives of the attack.
The decision of this Court in McGlinchey v. Wren [1982] I.R. 154, which acknowledged that the political exemption was expressly disclaimed by the appellant, McGlinchey, touched upon the distinction between an act of terrorism and a “political offence”. In that judgment the Court did not seek to attach any particular definition to the expression “political offence” or a particular definition of “terrorism”. One must therefore assume that the terms were used in their ordinary accepted meaning. It is furthermore to be noted that the case dealt solely with the particular facts of the case which disclosed a totally indiscriminate type of attack with a machine gun on a private dwelling-house when a civilian totally unconnected with any political objectives was killed. As the evidence stood, this offence was correctly characterised as terrorism, with which the appellant denied any involvement and for which he was subsequently acquitted. The treatment of the matter in that case did not determine that a politically motivated offence would cease to qualify for the exemption simply because violence was used. Furthermore the decision expressly left open for future consideration the conclusion that might be reached in different circumstances. The “reasonable man” test referred to must be a purely objective approach not to be influenced by sympathy or lack of sympathy with the aims or the means employed. The British Prevention of Terrorism Acts, the latest of which was enacted in 1989, defined terrorism as the use of violence for political ends, and includes the use of violence for the purpose of putting the public or any section of the public in fear but does not create any offence of “terrorism”. It is a definition devoid of any legal basis in international law and is simply an ad hoc definition for the purpose of permitting the detention of persons who are suspected of such activity. It has restricted application in geographical terms in that it applies only to such activities which relate to Northern Ireland affairs and to countries outside Great Britain, the Isle of Man and the Channel Islands. It is not applicable to acts of political violence if perpetrated by Scottish nationalist extremists or Welsh nationalist extremists or English extremists such as the “Angry Brigade” if the activities relate only to the affairs of those respective areas. The law in this State, whether legislative or otherwise, has never accepted any such imprecise definition.
The fairly elaborate list of offences against the State which are set out in the Offences Against the State Act, 1939, cover all the matters which could in a general sense be referred to as political offences within the State. It is noteworthy that the Oireachtas has not given any of these offences an extra-territorial effect. Thus the Oireachtas has, in effect, declined to make criminal under the Act of 1939 acts of the like nature committed outside the jurisdiction. Prior to the enactment of the Extradition Act, 1965, the Oireachtas was well aware of the past history of unrest and armed conflict in Northern Ireland, yet elected to make no provision for dealing with acts done in Northern Ireland until the enactment of the Criminal Law (Jurisdiction) Act, 1976. In particular it was aware of the fact that because of the renewal in 1956 of armed conflict aimed at the ending of partition by the use of force, Part II of the Offences Against the State (Amendment) Act, 1940, was brought into force on the 8th July, 1957, and remained in force for some years. Thus the question of the legal situation of persons accused of armed political activities in Northern Ireland cannot have been absent from the minds of the members of the Oireachtas. In subsequent extradition legislation no such provision was made and that fact, coupled with the particular provisions made in the Criminal Law (Jurisdiction) Act, 1976, demonstrates that the Oireachtas intentionally refrained from characterising as matters directed to the overthrow of this State or as activities designed to usurp the functions of our government, the political violence in Northern Ireland which had as its objective the re-integration of the national territory. Furthermore the Oireachtas in framing the Act of 1965 did not avail of the provisions of article 26 of the European Convention on Extradition in any way to modify the effect of article 3 of that Convention which was incorporated into the Act of 1965, namely, the exemption of political offences or offences connected with political offences. In fact the policy adopted, as is evidenced by the Act of 1976, and by the Convention of Dublin agreed on the 4th December, 1979, by the Member States of the European Communities, appears to have been one to give effect to the maxim “aut dedere aut judicare”.
In the light of the review of the political and historical background to our extradition legislation, which I have attempted to summarise, I am of opinion that the Court cannot draw the inference that it was the intention of the Oireachtas that the provisions relating to the political exemption in the Act of 1965 should not apply to persons charged with politically motivated offences of violence when the objective of such offences was to secure the ultimate unity of the country.
It is, of course, true that it always has been the policy of successive Irish Governments to endeavour to ensure that reunification is brought about by peaceful means. The fact that the policy adopted by persons engaged in the armed conflict in Northern Ireland is to seek to achieve the same objective by violence, deplorable and counter-productive as it is, demonstrates that such persons are pursuing a policy which is opposed to and contrary to and at variance with the policy adopted by the Government of Ireland. If these activities were undertaken within this jurisdiction they would, of course, be clearly within the contemplation of the domestic law. But in so far as they occur outside the jurisdiction they do not, save to the extent that they fall within the ambit of the Criminal Law (Jurisdiction) Act, 1976. The fact that the policy or activities followed by persons acting outside the jurisdiction of the State is opposed to or contrary to the policy adopted by the Government of Ireland in relation to the unity of the country is not, in my view, sufficient to equate it to a policy to overthrow this State or to subvert the Constitution of this State. In one sense any offence which damages the political interest of the State is a political offence whether committed inside or outside the State. But that is a matter for which the State must expressly legislate. There may be many matters in international affairs including warlike activities in respect of which the Government of this State has a particular interest or a particular policy including that under Article 29 of the Constitution of seeking to promote the peaceful settlement of international disputes. But that in itself would not be sufficient to enable the courts to deprive anybody who involves himself in the same dispute, in a manner opposed to the general government policy and who becomes a fugitive in this State, of the benefit of the statutory provisions dealing with the political exemption.
Under our legislation, unlike the position in many other states, the decision that a fugitive offender shall be extradited is exclusively a judicial one. The Minister for Justice can, within the provisions of the Act of 1965, direct that a person shall not be extradited. His power in this regard is more restricted than that vested in the executive in other states but it is an additional safety factor in the process as he may have better access to information from his political and diplomatic sources which ordinarily would not be available to the courts and, possibly, could negotiate for better treatment for the fugitive if returned.
For the courts, however, extradition cannot be treated as a question of foreign policy. They must remain completely impartial and detached and free from all political or diplomatic pressure in their objective determination of the issues involved. In addition, they must safeguard the constitutional rights of the fugitive and ensure that there will be no rendition which would subject the fugitive to injustice or to any treatment or procedure which would be inconsistent with the norms of our concept of fair procedures. While foreign proceedings may be fair and humane without conforming in all respects with the particular guarantees in our Constitution our statutory provisions do not permit the courts to ignore the motives of the requesting state or the fairness of the procedures by refusing to consider the treatment the fugitive will receive if returned. Neither should our courts ignore the answerability of the State to the organs of the European Convention of Human Rights and Fundamental Freedoms if a fugitive offender is handed over to any other state, whether a member of the Council of Europe or not, where the courts are not satisfied that his treatment there would not be in breach of the rights protected by the Convention.
In my view the decision in Russell v. Fanning [1988] I.R. 505 on the application of the political exemption ought not to be followed. There is no valid ground to infer from the plain and unambiguous meaning of the appropriate provisions of the Act of 1965 that the Oireachtas did not intend them to be applicable to a case such as the present one. The words themselves and the legislative context and ambiance of this subject all point to the opposite conclusion. I wish to add that I am satisfied that the analysis and the conclusions of Hederman J. and McCarthy J. in their respective judgments in Russell v. Fanning are valid.
For the reasons I have given I am satisfied that the offence for which the applicant was convicted was one which would have qualified for the political exemption and that the alleged offences the subject of the present extradition proceedings are all so closely connected with the original offence as also to attract the political exemption – see the judgment of this Court in Bourke v. Attorney General [1972] I.R. 36 – and on their own would also attract the like exemption. For these reasons I would allow the appeal on this aspect of the case.
I agree with the judgment of the Chief Justice on the Article 40 aspect of the case and I would allow the appeal on that ground also.

Griffin J.
Two questions arise for decision in this case:
1. Whether the offences alleged to have been committed by the applicant Dermot Finucane in the course of his escape from the Maze Prison in Northern Ireland, and the offence in respect of which he was serving a sentence of eighteen years imprisonment, and in respect of which the warrants issued in Northern Ireland, were political offences or offences connected with a political offence, which would entitle him to avail of the political exemption pursuant to s. 50 of the Extradition Act, 1965; and
2. Whether his release from custody should be directed by the Court pursuant to Article 40 of the Constitution irrespective of whether the political exemption was available to him under section 50.
In the course of the argument made on behalf of the applicant on the issue of the political exemption, it was submitted that the decisions of this Court in Quinn v. Wren [1985] I.R. 322 and Russell v. Fanning [1988] I.R. 505 were wrongly decided, or alternatively should not be followed, or that they should be distinguished. A like submission had been made, and was rejected, in Russell v. Fanning in which the Court had been invited to overrule its decision in Quinn v. Wren . I have had the advantage of reading in advance a copy of the judgment delivered by the Chief Justice and of that delivered by Walsh J. As has been pointed out by the Chief Justice in Quinn v. Wren , and by him and by Walsh J. in the instant case, every extradition case must be decided in the light of its own facts and circumstances. Like the Chief Justice, in so far as the judgment of Walsh J. upholds the principles established in Quinn v. Wren , I entirely agree with it. In respect of the decision of this Court in Russell v. Fanning , Walsh J. has, in his judgment, expressed the view that, on the application of the political exemption, the case should not be followed. He reached this conclusion after a thorough examination and review of all the facts and circumstances existing at the time of the conviction of the applicant of the offence in respect of which he was convicted and sentenced, and at the time of his escape from the Maze Prison, and of the provisions of the Extradition Act, 1965. Notwithstanding, and with due respect to his views, as expressed in his judgment, I remain of the opinion that Russell v. Fanning [1988] I.R. 505 was correctly decided. But as I am aware that the principles stated and the conclusions reached by him are supported by my two colleagues who are to follow, thus forming the majority of the Court, I do not propose to elaborate on my opinion. However, as this is the court of final appeal, although it may not be necessary to do so, I should like to say that, having regard to the importance of the use of precedent in our system of jurisprudence as providing a degree of certainty upon which members of the public are entitled to rely in the conduct of their affairs, the principles established in and the conclusions reached by the majority of the Court, are those which should now be applied in all cases in which the political exemption is in issue.
In respect of the application pursuant to Article 40 of the Constitution, I am satisfied that even if the political exemption was not available to the applicant, the Court should refuse to deliver him out of the jurisdiction and should direct his release from custody. On this question, I am in complete agreement with the judgment of the Chief Justice, and with the reasons stated by him for the conclusions at which he arrived. I would like however to add some observations of my own.
The 38 prisoners who escaped on the 25th September, 1983, were housed in H-Block 7, which contained over 120 prisoners in all. On the evening of the escape the prison authorities decided to transfer all the remaining prisoners in H-Block 7, a total of 88, to H-Block 8 which was about 60 to 70 metres away and was unoccupied, to enable a thorough search to be made for hidden weapons and to enable the police to conduct their investigation in that block. Along the route which the prisoners had to traverse there were German shepherd dogs, in the charge of prison officers who were dog handlers, on either side, 4 dogs being on the right and 3 on the left, and in addition 2 dogs in the yard of H-Block 7. Before the transfer took place and after the dogs had first taken up positions, the Governor of the prison Mr. Whittington, who was present for only a few minutes, ordered that the dogs should be moved back behind a little wall along the route. Having regard to the events that occurred subsequently, it would appear that after the departure of the Governor the position of the dogs was changed to their original position notwithstanding his orders.
A large number of prisoners alleged that in the course of their transfer, during which most of them were in their bare feet and were naked from the waist up, they were assaulted by prison staff and bitten by the dogs. They further alleged that, on the 26th September, they made requests to see one of the doctors who attend the prison and that these requests were refused or ignored. They alleged that further requests on the 27th, 28th, and 29th September were also refused or ignored.
On the 26th September Mr. Whittington had a meeting with representatives of the Prison Officers Association and was told that, as a mark of respect to officer Ferris, they were imposing certain conditions from 14.00 hours on Monday until after the funeral of the officer. On the following day, the 27th September, Mr. Whittington learned that the prison officers were not accepting requests by prisoners to see a doctor. He was very concerned at this, and sent for the representatives of the Prison Officers Association. He expressed his concern to them, and asked them to change their attitude, but they were not willing to do so. He then reported the matter to the Northern Ireland Office. On Friday the 30th September, being the day after the funeral of officer Ferris, he ordered that the prison would return to normal functioning. A number of prisoners did not in fact receive visits from the doctor until nine to ten days after the escape.
Because of the allegations that prisoners had been assaulted on the 25th September, and bitten by dogs, the Prison Department of the Northern Ireland Office requested the Governor of the prison to carry out an investigation into these allegations. This investigation commenced early in October, 1983, and was carried out by Mr. McLaughlan, the Deputy Governor of the Prison. His report was completed in November, 1983, and in it he stated that “I have met with what could be described as ‘a wall of silence’ in my attempt to investigate the allegations.”This was from both prisoners and prison officers. However, a number of prison officers, including the dog handlers, who had been involved in the transfer of prisoners to H-Block 8, made written statements which were furnished to Mr. McLaughlan and in which they all stated that no prisoner had been assaulted and no dog had come into contact with a prisoner. All officers declined to be interviewed by Mr. McLaughlan.
All the foregoing facts are to be found in the judgment of Hutton L.C.J. in an action taken by Brian Pettigrew against the Northern Ireland Office and the Governor, hereinafter referred to.
A large number of prisoners instituted proceedings against the Northern Ireland Office and the Governor of the prison in respect of the assaults, including dog bites, alleged to have been suffered by them. Three of these actions were tried in the County Court. In each of the three cases a number of prisoners and former prisoners gave evidence on behalf of the plaintiffs that they had been bitten by dogs in the course of the transfer to H-Block 8, and that their requests to see a doctor had been refused or ignored. A large number of prison officers gave evidence to the effect that no-one had been bitten by a dog and that no request for a doctor had been refused. All three actions were dismissed.
One of the prisoners transferred on the day of the escape was Brian Pettigrew. He commenced proceedings in the High Court of Justice in Northern Ireland, claiming damages for inter alia assaults (including dog bites) alleged to have been suffered by him in the course of his transfer, and in respect of the alleged failure or refusal of the Governor to allow him to see a doctor. The action was tried by Hutton J., as he then was. It would appear that after the plaintiff had given evidence and been cross-examined, it was stated by his counsel that it was proposed to call, as witnesses on his behalf, persons who were prisoners in H-Block 7 on the day of the escape and who were transferred to H-Block 8, and who, it was alleged, had been assaulted by prison officers and bitten by dogs in the course of the transfer. Counsel for the defendants objected to the admissibility of such evidence. The learned trial judge heard arguments on the admissibility of that evidence, and in due course delivered a written judgment, which I presume to have been a reserved judgment. He held that the evidence of the other prisoners that they were bitten by dogs was admissible in evidence in that case. The trial continued and the learned trial judge, who by that time had become Lord Chief Justice, delivered judgment in writing on the 17th November, 1988. In that judgment, he said at p. 6 of the transcript that Mr. Campbell Q.C. for the defendants, in the course of his cross-examination and pursuant to his instructions, put to the plaintiff and to other former prisoners called as witnesses that if they had made a request to see a doctor on Monday the 26th September and on the subsequent days, that request would have been granted. But after the trial had proceeded for two weeks, Mr. Campbell informed the court that documents had just come to light which showed that his instructions were incorrect and that the true position was that if such requests had been made on any of the four days following the escape, the request would not have been granted.
It appears from the judgment that all the dog handlers and the principal officer in charge of them stated in evidence that no dog had bitten or come into contact with any prisoner. In addition, the Lord Chief Justice stated that it was suggested to the plaintiff and to the prisoners and former prisoners called by him that, if they had made a request to see a doctor on Monday the 26th September, in order to obtain treatment for alleged dog bites, arrangements would have been made for them to see a doctor, the implication being that they had not done so because they had sustained no bites.
Doctors who had been called to examine the plaintiff in that case and to examine other prisoners nine or ten days after the escape, gave evidence, and the Lord Chief Justice found, inter alia:
1. that having regard to the doctors’ evidence he did not believe the evidence of the dog handlers and the principal officer in charge of them that no prisoner was bitten by a dog;
2. that a number of prisoners, some of whom were naked from the waist up, did have injuries from dog bites when they arrived in H-Block 8;
3. that a number of prison officers who gave evidence about the activities of the dogs must have lied in the witness-box.
He stated that it was deplorable that a prisoner being moved from one part of a prison to another should have been bitten by dogs in the charge of prison officers. The plaintiff in that case was awarded damages, including aggravated and exemplary damages.
It is for the purpose of putting the applicant’s application under Article 40 of the Constitution into proper context that I have dealt with the aforesaid matters at some length. It is clear that a number of criminal offences were in all probability committed by some, at least, of the prison officers in the prison – these would include assault, perjury, and conspiracy. Although it is now more than six years since the escape, no prison officer has been disciplined, suspended, dismissed, or charged with any offence. During the course of the hearing of the appeal in this Court in Russell v. Fanning [1988] I.R. 505, in which judgment was delivered on the 19th January, 1988, a suggested explanation for such failure to discipline etc. was that a large number of claims for damages had been brought by the prisoners and were then unresolved. Whilst that explanation may have appeared plausible at the beginning of 1988, it was no longer so after Hutton L.C.J. delivered his judgment. It is now clear from the reports made by the Governor, the Deputy Governor, the medical records of the prisoners, and the medical reports of the doctors who attended them, that the prison authorities were well aware of the fact that requests for medical attention were refused and that there was evidence that some prisoners had been bitten by dogs. Moreover, with this knowledge, three actions were successfully fought in the County Court by the prison authorities on the false basis that there had been no requests for medical treatment, and that no person had been bitten by a dog. Many of the prison officers who were serving at the prison in September, 1983, and who gave evidence, are still serving there.
In the case of the applicant, there are further factors which are of considerable relevance on the issue arising in pursuance of Article 40. In his affidavit, he alleged that in April, 1983, he was taken out of one of the workshops in the prison by two warders, whom he named, and threatened with execution by them if any warder was injured in disturbances which were then taking place in the prison. One of those named by him was murdered by the I.R.A. on the 17th February, 1985. The other has since retired from the prison service, but could have been available to swear an affidavit that such allegations were untrue. No such affidavit was provided for this case.
Furthermore, as a result of the escape, an inquiry into the security arrangements at the Maze Prison was conducted by H.M. Chief Inspector of Prisons, and the report of the inquiry (known as “the Hennessy Report”) was submitted to the House of Commons on the 26th January, 1984. Although only very few of those who took part in the escape are identified in the report, the applicant is identified at para. 2.19 as having chased officer Ferris who ran from the gate lodge and was shouting to the officer at the pedestrian gate to secure it and sound the alarm. That paragraph continues:
“He [officer Ferris] had been stabbed three times in the chest. Before he was able to reach the gate, he collapsed and later died. Finucane continued on to the pedestrian gate where he stabbed two officers who had just entered the prison. Officer ***, the officer on gate duty, had no time to sound the alarm or secure the gate before he too was stabbed.” [The names of all officers referred to in the Report were omitted from the printed report for security reasons].
It seems to me to be a fair inference from that paragraph of the report that the applicant was being identified as the person who stabbed officer Ferris. In Regina v. James Joseph Burns and Others 16 prisoners in the Maze Prison (the sixteen not including the applicant) were indicted before Lord Lowry L.C.J. as he then was, for the murder of prison officer Ferris. In his judgment acquitting all sixteen of the charge of murder, Lord Lowry said that having carefully considered all the medical evidence about the heart condition of the prison officer, he could not be satisfied beyond reasonable doubt that the unlawful acts of any prisoner (“including the so far unidentified prisoner who stabbed prison officer Ferris”)caused or helped to cause his death. Notwithstanding that finding, human nature being what it is, it appears to me to be highly likely that there are still prison officers in the Maze Prison who do not accept that the alleged activities of the applicant during the escape did not cause or contribute to the death of prison officer Ferris.
I agree with the Chief Justice that, if returned to the Maze Prison the applicant would, in the circumstances of this case, be a probable target for ill-treatment and I would concur in the order proposed by him pursuant to Article 40 of the Constitution. I would accordingly allow the appeal.

Hederman J.
With regard to the applicant’s claim for exemption in respect of a political offence pursuant to s. 50 of the Extradition Act, 1965, I agree with the judgment delivered by Walsh J.
On the applicant’s claim for relief pursuant to Article 40, s. 4, sub-s. 2 of the Constitution, I agree with the judgment of Finlay C.J. I would allow the appeal on both aspects of the case.

McCarthy J.
On the 25th September, 1983, there was a mass escape from H-Block 7 of the Maze Prison in Northern Ireland. The applicant was one of those who escaped. His extradition to Northern Ireland has been ordered by the District Court. He sues by way of special summons for an order under s. 50 of the Extradition Act, 1965, and, by way of judicial review, for an order of certiorari in respect of the District Court order and an order of habeas corpus (so called) being a complaint under Article 40, s. 4, sub-s. 2 of the Constitution that he is being unlawfully detained.
The section 50 claim
The applicant says that his original offence, having guns and ammunition with intent to endanger life, was a political offence, and that the 20 other warrants issued in Northern Ireland relating to offences alleged to have been committed during the course of the escape were political offences or offences connected with political offences. To deal with that argument it may be said that all the offences have the same alleged general purpose; the original offence being committed as a member of and on behalf of the I.R.A., in an operation directed against armed British soldiers who were on active service; the escape offences being in carrying out his duty to escape on instructions by “the republican camp staff”. He abjured having any objective of subverting the Constitution or usurping the organs of State established by the Constitution (see Quinn v. Wren [1985] I.R. 322).
The facts are not in issue; the legal inference to be drawn from the facts – whether or not the offences “qualify” for the political exemption, is the legal issue. Therefore, no question arises as to where the onus of proving facts lies; the larger question as to where the onus lies of establishing that the offence in question is either a political offence or one connected with a political offence has not been argued in this appeal no more than it appears to have been in earlier cases, save in Bourke v. Attorney General [1972] I.R. 36,48. (See The State (Magee) v. O’Rourke [1971] I.R. 205; McGlinchey v. Wren [1982] I.R. 154; McMahon v. Leahy [1984] I.R. 525; Shannon v. Ireland [1984] I.R. 548; Quinn v. Wren (supra) and Maguire v. Keane [1986] I.L.R.M. 235.)
The applicant contends that Russell v. Fanning [1988] I.R. 505 was wrongly decided and should not be followed, that the appropriate law is as appears from the cases of Bourke v. Attorney General [1972] I.R. 36 and The State (Magee) v. O’Rourke [1971] I.R. 205. Mr. MacEntee S.C. referred to a number of unreported decisions of the High Court between 1974 and 1976 all of which, he says, followed the “appropriate law”. ( Bums v. Attorney General – 4th February, 1974; McLoughlin v. Attorney General – 20th December, 1974; McCarrick v. Attorney General – 15th January, 1976; Gilhooley v. Attorney General -4th June, 1976; McManus v. Attorney General – 23rd March, 1977; Swords v. Attorney General – 22nd December, 1977; O’Hagan v. Fleming – 18th July, 1978; Quigley v. Fleming – 22nd July, 1980). They are noted at p. 303 of Hogan and Walker, Political Violence and the Law in Ireland (1989). It was, the argument goes, an impermissible change in McGlinchey v. Wren [1982] I.R. 154 to introduce a totally new concept, no argument in relation to such a radical change having been heard. The effect was to empty the section of application in a vast number of cases. The logical sequence was to effect an outlawry, speculating on what other rights might be lost.
Russell v. Fanning [1988] I.R. 505 was decided in the High Court on the 18th February, 1986, and by this Court on 18th January, 1988. Mr. O’Flaherty S.C. for the respondents relies upon that decision and the principle of stare decisis as stated, although qualified, in Attorney General v. Ryan’s Car Hire Ltd. [1965] I.R. 642 and Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260. Neither case is amongst those mentioned in the report of Russell v. Fanning [1988] I.R. 505 in which O’Hanlon J. in the High Court appeared to find that the offences there in question could be regarded as political offences or offences connected with a political offence. Despite that conclusion, against which the State brought but did not pursue an appeal, he concluded at p. 516 that the protection of s. 50 of the Act of 1965 did not extend:
“to the present case by reason of the fact that the offences alleged to have been committed by the plaintiff were committed for the purpose of promoting the objectives of the Irish Republican Army.”
The Chief Justice referred to this at p. 529 by stating:
“On this issue O’Hanlon J. decided that having regard to the decision of this Court in Quinn v. Wren [1985] I.R. 322 he was bound to interpret s. 50 of the Extradition Act, 1965, as excluding from the meaning of “political offence”offences committed for the purposes set out and with the aims and objectives set out in the plaintiff’s affidavit.”
I understand the conclusion to be that whilst the offences are, in ordinary parlance, political offences or offences connected with political offences, they are not, because they purpose to usurp the functions of government, to be treated as such within the meaning of section 50.
In The State (Magee) v. O’Rourke [1971] I.R. 205 the plaintiff was charged before the Commissioner of Oyer and Terminer in Belfast with (1) housebreaking with intent, contrary to s. 27, sub-s. 2 of the Larceny Act, 1916; (2) using a motor car on the public highway without insurance contrary to s. 41 of the Road Traffic Act (Northern Ireland), 1955; (3) malicious damage to property contrary to s. 51 of the Malicious Damage Act, 1861; and (4) assault on a peace officer contrary to s. 38 of the Offences Against the Person Act, 1861. FitzGerald J., at p. 216, stated that none of these charges were political offences or connected with a political offence; Teevan J. agreed to allow the appeal, without giving any reasons therefor. Ó Dálaigh C.J., with whose judgment Walsh J. agreed, stated at p. 211:
“In as clear language as perhaps one could expect in the circumstances, Magee has confessed to being concerned in the preparation of an armed I.R.A. raid on Hollywood military barracks. There can be little room for doubt that his action falls either within the category of ‘political offence’ or of ‘offence connected with a political offence.’ Counsel for the respondent has offered no argument to the contrary and, in any event, in my judgment Magee has clearly brought himself within the terms of paragraph (b) of s. 50, sub-s. 2 of the Extradition Act, 1965.” (emphasis added)

Budd J. did not directly comment on this question but stated, having reviewed, in detail, the evidence as to the intended raid on Hollywood barracks, at pp. 215-216:
“This evidence and the inferences that, in my view, should be properly drawn from it lead me to the opinion that there are substantial grounds for believing that Magee, if removed from the State under the Act of 1965, will be prosecuted or detained for a political offence or an offence connected with a political offence.”
In The State (Quinn) v. Ryan [1965] I.R. 70, Ó Dálaigh C.J., stated at p. 120:
“It requires to be said that a point not argued is a point not decided; and this doctrine goes for constitutional cases (other than Bills referred under Article 26 of the Constitution and then by reason only of a specific provision) as well as for non-constitutional cases.”
The Article 6 argument upon which the majority decision in Russell v. Fanning [1988] I.R. 505 was based was not raised in The State (Magee) v. O’Rourke [1971] I.R. 205 nor, presumably, in any of the many decisions of the High Court which followed on it. It might be validly argued that in making the order for extradition in Russell v. Fanning , O’Hanlon J. was departing from an established legal principle and thereby infringing the rule of stare decisis.
The Court is now asked to review the decision in Russell v. Fanning [1988] I.R. 505 and, if necessary, to overrule it. I have re-read the judgments in that case; because of the challenge made to it I am free to differ from its conclusion. I affirm the views I expressed, and the reasons I stated. Therefore, I agree with the conclusion expressed by Walsh J. Section 50 of the Extradition Act, 1965, states a statutory imperative – that a person arrested under Part III shall be released if the High Court so directs in accordance with the section. A direction may be given by the High Court where the court is of opinion that the offence to which the warrant relates is a political offence or an offence connected with a political offence. Both these phrases must always be considered according to the circumstances existing at the time when they have to be considered: see the judgment of Ó Dálaigh C.J. in Bourke v. Attorney General [1972] I.R. 36 at 58-60. It follows that I would allow the appeal and direct the release of the applicant pursuant to section 50.
I reserve for another occasion the consideration of what effect is to be given to undertakings by the prosecuting authority in another jurisdiction in respect of what may or may not be the subject of prosecution.
The inquiry under Article 40
I adopt the description of the relevant events as contained in the judgment of the Chief Justice. In Russell v. Fanning [1988] I.R. 505, at p. 555 I said:
“A breakdown in discipline may be an understandable human reaction against those believed responsible for the death of a fellow prison officer; a failure to institute and carry out disciplinary procedures at least to identify, if not to punish, those responsible for assaulting the returned prisoners is, in my view, inexcusable and points to a breakdown in the prison system. Having regard to the conclusion I have reached on the first issue, it is not necessary that I should express a view on this question; suffice it to say that I incline to the view that the plaintiff had discharged the onus of proof sufficiently to impose upon the prison authority the burden of proof in respect of discipline of prison officers.”
(a) Standard of proof
The case concerns the personal liberty and bodily integrity of a citizen. Unlike other inquiries under Article 40 the consequence of holding the detention lawful is that the courts will have no effective role in the further protection of the constitutional rights of that citizen – he will be extradited back to the prison from which he escaped. So, the argument goes, there is a lesser standard of proof appropriate; it is not a question of probability but whether or not there is a real and substantial danger – a disproportionate risk that the applicant, if delivered into another jurisdiction, will be ill-treated. Mr. MacEntee S.C. for the applicant argues that it is never possible to show as a probability that people will behave outrageously. I do not accept that proposition. If in a series of instances it were shown that people in the same situation had been ill-treated over a period, then it is probable that another person put in the same situation and subject to the same control would be ill-treated. I accept, however, that in many instances, despite there being a very real danger, it is impossible to prove the probability of such ill-treatment. In my view, the courts charged with the protection of the Constitution and of the citizens whose fundamental rights are thereby guaranteed defence and vindication would fail in their duty if, being satisfied that there is a real danger that a citizen delivered out of the jurisdiction will be ill-treated, did not refuse to permit such delivery. In the light of that, the courts must look at the circumstances of each case.
(b) The danger
In Russell v. Fanning [1988] I.R. 505 I inclined to the view that the plaintiff had discharged the onus of prof sufficiently to impose upon the prison authority the burden of proof in respect of discipline of prison officers. In Pettigrew v. Northern Ireland Office [1989] 3 B.N.I.L. 83, to which the Chief Justice has referred, which was tried in the courts in Northern Ireland after the decision of this Court in Russell v. Fanning an entirely new scenario was revealed. In Russell v. Fanning [1988] I.R. 505, 518-519 O’Hanlon J. said:
“Once again, the evidence tendered on behalf of the plaintiff stops short of alleging or establishing the existence of a practice of ill-treatment or the use of unlawful violence by prison staff against prisoners in the Maze Prison. If the prisoners’ rights were infringed in the manner described, immediately after their recapture in 1983, they are being given an opportunity to vindicate their rights in court in the civil proceedings which are now pending. I am of opinion that by reason of (a) the lapse of time which has occurred since the break-out took place, (b) the civil proceedings for damages which other prisoners are now prosecuting, and (c) the publicising of these allegations in the present proceedings, coupled with the response evoked from the prison authorities, it is reasonable to assume that the “safe conduct” promised in paragraph 10 of Mr. Hassan’s affidavit is well-founded.”
O’Hanlon J. did not know that in a series of such proceedings perjured testimony would be given by prison officers as a result of which these claims would be dismissed. He did not know that a number of these prison officers would later sit in the High Court in Belfast listening to a false case being made by their counsel because of their lies – a case that had to be retracted in the course of the trial. He did not know that despite the dismissal of the claim in the courts in Northern Ireland the Northern Ireland Office would subsequently offer to compensate those whose actions had failed. He did not know that those prison officers who had lied in court or who had allowed their legal representatives to make a false case, who had conspired to pervert the course of justice would, so far as is known, remain undisciplined and unpunished still, presumably, serving in the prison service in Northern Ireland. He did not know that the prison officers at the Maze Prison would agree together to obstruct two official inquiries into the mass break-out from the prison to such good effect that a leading member of the Prison Officers Association expressed the hope that Governor McLaughlan “was meeting plenty of brick walls”. He did not know what level of administration in Northern Ireland was involved in that conspiracy to pervert the course of justice; in this case Hamilton P. accepted that the Northern Ireland Office was not a party to such conspiracy. Whatever strictures may have been expressed by Hutton L.C.J. in his judgment in Pettigrew’s case , the circumstance remains unchanged, that no disciplinary action has been taken against the prison officers. I do not overlook the fact that Russell was extradited and it may be inferred that he has not been ill-treated.
I agree that this Court should prohibit the delivery of the applicant in order as far as practicable to defend his constitutional rights which are protected by Article 40, s. 3 of the Constitution.

 

Duncan v. Governor of Portlaosie Prison

[1997] IEHC 91; [1998] 1 IR 433 (9th June, 1997)
JUDGMENT of Mr Justice Kelly delivered the 9th day of June 1997
1. All of these Applicants seek Orders pursuant to Article 40 of the Constitution directing their immediate release from custody. Each of them was, on dates prior to 6th November, 1996, remanded in custody pursuant to Orders of the Special Criminal Court. Those Orders of remand were invalid. This was so because one of the three Judges who comprised the Special Criminal Court on the dates upon which the remands were made was, unknown to himself, no longer a serving member of that Court.

2. This unhappy state of affairs came to the knowledge of the authorities on the 6th November, 1996 and as a result certain steps were taken. The background to all of this is set forth in considerable detail in the judgment of the Divisional Court in Hegarty v. The Governor of Limerick Prison (unreported 26th February, 1997) and in my own judgment in O’Hagan and Ors v. Governor of Portlaoise Prison (unreported 30th May, 1997). There is a good deal of over-lapping between the submissions which were made in those cases upon which judgments were delivered and those made in the present case. It will not therefore, be necessary to rehearse in detail the determinations of law which were made by the Divisional Court or by myself in the earlier cases insofar as they have a relevance to the present case. I propose to deal in detail only with those factual elements and legal submissions which differ from the earlier cases.

3. All of the Applicants, save Joseph Kavanagh, were on the night of the 6th November, 1996 detained at Portlaoise Prison. Mr. Kavanagh was at Mountjoy Prison. In my judgment in the case of O’Hagan and Others v. Governor of Portlaoise Prison , I have set out what happened at Portlaoise Prison once the Minister for Justice gave the direction that prisoners detained on foot of invalid orders made by the Special Criminal Court should be released. I must now set forth what happened at Mountjoy Prison on that night.

4. The officer in charge of the prison was Assistant Chief Officer Duggan. He has given evidence before me. He testified that at about one o’clock in the morning he received a telephone call from Mr. Aylward in the Department of Justice. Mr. Aylward told him to release Joseph Kavanagh. The Gardai had come to the prison at about 11.30 on the night of the 6th November, 1996 enquiring of Mr. Duggan if he knew anything about a possible release of Mr. Kavanagh. At that stage he did not.

5. When Assistant Chief Officer Duggan got the phone call from Mr. Aylward, he telephoned the Chief Officer, who already knew about the direction to release. He then telephoned another Assistant Chief Officer, a Mr. Kavanagh, who was in charge of the Separation Unit where the prisoner Kavanagh was detained. Mr. Duggan gave Assistant Chief Officer Kavanagh directions to release the prisoner Kavanagh.

6. Assistant Chief Officer Duggan accompanied the prisoner to the main gate in handcuffs. This was normal practice when a prisoner was taken from the Separation Unit to any part of the prison. In any event, Assistant Chief Officer Duggan was clear that given that the prisoner was being moved at one o’clock in the morning from the Separation Unit, he ought to be handcuffed for safety reasons. The prisoner was taken to the main gate by car. Assistant Chief Officer Duggan, the prisoner and other staff members left the car at the inner gate. They then went through the two gates and stood outside the main gate of the prison. There was some difficulty encountered in trying to take the handcuffs off the prisoner but this was done. Once the handcuffs were taken off, prison staff stood back and the Gardai approached. An arrest was effected outside the main gate of the prison on Prison Avenue.

7. Insofar as there is a conflict of testimony between the Applicant Kavanagh and Assistant Chief Officer Duggan or Detective Superintendent Gordon, I prefer the evidence of both the prison officer and the Garda. Having had an opportunity of seeing these witnesses giving evidence and being cross-examined, I would not be prepared to accept Mr. Kavanagh’s version of events in preference to that of the other witnesses. Accordingly, I hold that at the time that the prisoner was arrested, he had been freed from handcuffs and was not under any form of restraint on the part of prison staff. The arrest was effected on Prison Avenue which is an avenue which leads from the main gate of the prison to the North Circular Road. Vehicular traffic can go in and out of Prison Avenue and there are gates at the end of it which open on to the North Circular Road. Prison Avenue is prison property and the gates at the end of it are not normally locked but merely closed over at night.

8. Mr. Kavanagh was not given his property when he was being released because the prison staff were anxious to release him immediately and, in any event, a release in the small hours of the morning would have created administrative difficulties in that regard.

9. Insofar as the releases of the other prisoners from Portlaoise are concerned, there is little to add to the description of what took place at that prison to what is set forth in the judgment which I delivered in O’Hagan and Others and to which I have already made reference. There is, however, one point of detail to which considerable significance was attached by Mr. Forde. In the course of his submissions, he contended that the locus of the arrest was an important element to be borne in mind in the case of all of these prisoners. There is no doubt but that Mr. Kavanagh was arrested on prison property. Neither is there any doubt but that the Applicants who were arrested at Portlaoise Prison were also on prison property. The evidence in their case demonstrates that having been brought directly to the main gate for discharge, each prisoner was in turn brought into the first gatelock and identified to the officer in charge of the main gate. Each was then brought through what is called the middle lock and were discharged from the prison through the third or outer gatelock, having been identified to each gate officer in turn. Once they went outside the main gate, however, they remained on prison property and there were three further gates which would have to be negotiated before arrival on the main road.

10. I am satisfied that both in relation to Portlaoise and Mountjoy Prisons at the time when the Applicants were arrested, the Governors’ custody of them had ceased. But even if I am wrong in that view, it does not appear to me to alter the position at law since there is nothing unlawful per se about an arrest of a person already in custody or detention provided that such arrest is carried out with the consent of the custodian or detainer. In the case of these prisoners, once the respective prison authorities were informed of the ministerial order, everything that they did from that moment on was with a view to bringing their custody of the prisoners to an end. In my view they succeeded in that. But even if they did not, there is no doubt but that the prison authorities consented to the arrests taking place and that is sufficient to make the arrests lawful (see The People (DPP) v. Kehoe [1986] I.R. 444, Hegarty v. Governor of Limerick Prison (unreported 26th February, 1997) and In Re Ó Laighleis 1960 I.R. 93).

11. I return to the emphasis which has been placed upon the fact that these arrests took place on prison property. Given the views which I have already expressed, it appears to me that the locus of the arrest has no significance. I am fortified in that, not merely by reference to the cases already cited, but also by reference to the judgment of Walsh J. in In Re: Paul Singer (No. 2) (1964) 98 I.L.T.R. 112. At page 124 Walsh J. said this:-

“Once he was free of the restraint of the Governor of the Prison the order of the Supreme Court had, in my opinion, been complied with and even if the place upon which he was arrested could properly be described as property under the control of the prison authorities, there is nothing in that fact to render the apprehension by the Garda officers illegal, once they had a valid warrant for his arrest”.

12. That expression of view by Walsh J. appears to me to put beyond doubt the fact that the place where an arrest is effected does not affect the lawfulness of the arrest. Neither does the fact that the arrests in suit were effected after a period of unlawful detention affect their legality or efficacy. (See The People (DPP) v. Colm O’Shea (1981) 2 Frewen 57).

13. In these circumstances I reject the complaint which is made on this aspect of the matter. In so doing, I repeat my findings and the view of the law which I have already expressed in O’Hagan’s case in respect of all of the other submissions which were made in respect of these Applicants and which are common to all of the cases.

14. The next point to which I must make reference is the assertion of a conspiracy having taken place between the Respondents and the Notice Parties. In essence it amounted to an allegation of conspiracy to keep the Applicants in unlawful custody so as to enable the State to bring about a situation where there would be no genuine release and then the effecting of a purportedly lawful arrest and a recharging before the Special Criminal Court.

15. As the case went on, various concessions were made by Counsel for the Applicants in respect of this allegation of conspiracy. First, it was accepted that there was insufficient evidence to involve the Minister for Justice or her officials. It was also conceded that there was insufficient evidence of the Attorney General being involved but the claim was maintained to some extent against the Director of Public Prosecutions.

16. On the evidence that I have heard, I am quite satisfied that what took place in relation to these Applicants was no different to what occurred in the case of Michael Hegarty. The argument in relation to conspiracy was dealt with very fully by the judgment of the Divisional Court at pages 14 to 16. I do not propose to repeat in this judgment what was said there save to affirm that there is, in my view, no evidence of any agreement on the part of the State authorities to do something unlawful or to do something lawful by unlawful means.

17. As an adjunct to this argument it was suggested that although there might not have been any conspiracy between the Attorney General and the Minister and the officials of their offices, nonetheless there was a knowing detention of the Applicants for a protracted period so as to ensure that rearrests could be carried out efficaciously. I find no evidence to support this proposition.

18. I must deal with another submission which was made by Mr. Forde and which did not figure in any of the other cases. He says that this case demonstrates massive incompetence on the part of the State and its officers. He contends that everything that happened from the decision of the Government of the 1st August, 1996 to the events of the night of the 6th and 7th November, 1996 was characterised by blunder after blunder. Indeed, Mr. Ryan, on behalf of the State authorities other than the Director of Public Prosecutions, has described what happened as a chapter of accidents. That was no exaggeration of what occurred. Mr. Forde says that the Court ought to mark its displeasure at this incompetence on the part of the State by directing the release of the Applicants. I reject this contention. I am not engaged in an exercise of punishing the State. I am investigating the lawfulness of the detention of these Applicants. There might be something to be said for this argument if I was dealing with a case similar on its facts to those disclosed in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550. But this case bears no resemblance to Trimbole’s case on its facts. It is wholly different. Furthermore, in this case even if there were unlawful activity, there are no fruits from it. The Applicants are now in precisely the same position that they would have been in if the chapter of accidents in question had not taken place. I therefore reject this line of argument.

19. Finally, I must deal with a matter which arose early in the hearing when an application was made by Mr. Ryan to set aside a subpoena which had been issued at the suit of the Applicants directed to the Attorney General. The Applicants wished to call the Attorney General as their witness on this inquiry. Mr. Ryan objected. He did not seek to avoid having the Attorney General give evidence. But he argued that there was no relevant evidence which the Attorney could give which would not be protected by legal professional privilege. I acceded to this application and indicated that I would give my reasons for so doing later. I now do so.

20. The first point that arises for decision is as to the jurisdiction of the Court to set aside a subpoena. In Cully v. Northern Bank Finance Corporation Limited [1984] I.L.R.M. 683, O’Hanlon J. set aside a subpoena on the grounds that the witness against whom it was directed would, if he gave evidence, be acting in breach of the oath of secrecy which he was required by statute to take when he entered the service of the Central Bank. That Judge held that the provisions of Section 31 of the Central Bank Act, 1942 gave rise to a claim of privilege on grounds of public policy from disclosure of any information of the type referred to in the oath of secrecy. He held that he had jurisdiction to set aside the subpoena and cited, in support of that contention, the judgment of Scarman L.J. in Senior v. Holdsworth Ex-parte Independent Television News Limited [1976] Q.B. 23. He cited with approval the following passage from the judgment of Scarman L.J. (as he then was):-

“The law, as it now stands, does not enable the Court to refuse to issue a witness summons (or subpoena) for the production of documents upon due application. The remedy available to the person served is to move to set the summons aside. On such an application the Court will set it aside if what is sought is irrelevant, oppressive, an abuse of the process of the Court, or recognised by the law as being privileged from production. Further, even if the documents sought be relevant and not otherwise privileged from production, the Court has a residual discretion in certain circumstances to protect the document and set the summons aside”.

21. Whilst the above decision of O’Hanlon J. was not cited in argument, reliance was placed upon the judgment of Morris J. in S.P.U.C. v. Grogan (No. 3) [1992] 2 I.R. 471. Whilst Morris J. was not there asked to set aside a subpoena, he did make an order refusing to allow evidence to be given to the Court by an official of the Attorney General’s office in circumstances where he was satisfied that such evidence was not admissible. The net effect of that decision in practical terms is the same as if a subpoena were set aside.

22. Finally, there is a decision of the Queen’s Bench Divisional Court in R.v. Lewes Justices Ex-parte The Gaming Board of Great Britain [1971] 2 All E.R. 1126 where Lord Parker C.J. said:-

“I am quite satisfied that in any event it is within the inherent jurisdiction of this Court, just as it was before subpoenas were abolished, to set aside a witness summons if there has been an abuse of the process of the Court or if it is clear in fact that the witness cannot give relevant evidence”.

23. I am, therefore, satisfied that this Court does have an inherent jurisdiction to set aside a subpoena.

24. As I already indicated, I set aside the subpoena on foot of the inherent jurisdiction of the Court. I did so because I was satisfied

(a) that on the basis of the documents which had been exchanged between the parties and the issues as defined in them, I could not see how anything that the Attorney General did (however his functions are defined) or how any activity or non-activity could be regarded as material to the question of the lawfulness of the detention of the Applicants on foot of the order made by the Special Criminal Court on the 7th November, 1996.
(b) Even if there was evidence which could be given by the Attorney General and which would be relevant to that issue, I was not satisfied that such evidence could be given without interfering with the privilege which the Attorney General undoubtedly has in relation to his role as legal adviser to the Government.

25. However, in setting aside the subpoena I made it clear that if in the course of the hearing of the inquiry it became apparent that the evidence of the Attorney General was required in relation to any matter which was both relevant and not apparently protected by legal professional privilege, I would consider an application from the Applicants for the issue of a further subpoena directed to him. No such application was made.

26. For the reasons set forth in this judgment and in the earlier judgments of the Divisional Court in Hegarty’s case and my own judgment in O’Hagan and Others v. The Governor of Portlaoise Prison , I am satisfied that the detention of all of these Applicants is lawful and that they are not entitled to orders for their release pursuant to Article 40 of the Constitution.

27. These applications are dismissed.

Director of Public Prosecutions v Molloy

, unreported, Supreme Court, February 28, 2003
JUDGMENT delivered on the 28th day of February, 2003 by McCracken J., [Nem Diss].

1. This was an appeal by way of case stated by Judge John P. Brophy arising out of the prosecution of the respondent for certain offences under Section 13 of the Road Traffic Act, 1994.
2. The net point at issue is whether the respondent was lawfully arrested. The background to the case is clearly and helpfully set out in the case stated and it is not necessary to repeat the entire of it in this judgment. Briefly, the prosecuting Garda was on duty as an observer in a patrol car at a checkpoint near Clonee, Co. Meath. A car approached the checkpoint, stopped about a hundred meters from it, turned, and headed back towards Clonee. The Gardai pursued this car, which drove into a gateway of a house in Clonee. The Gardai followed the car into the driveway and found the respondent on his own in the car. He was asked for his name and address, which he gave, and then told the Gardai that, “it was his house that he was parked in front of”. His speech was incoherent and slurred and there was a smell of alcohol off his breath, and he was asked to step out of the car. When he did so, he stumbled, and had to be supported by one of the Garda. At this stage the prosecuting Garda formed the opinion that the respondent was incapable of having control of a vehicle, due to consumption of intoxicating liquor, and told the respondent that he was of the opinion that the respondent had committed an offence under one of several sections of the Road Traffic Acts and explained to the respondent that he was arresting him for drunk driving.
3. The Garda then cautioned the respondent in the normal way and in response, the respondent told the Garda that he the Garda could not arrest him, as the arrest was an unlawful arrest since the Garda had followed him into his driveway. The respondent became abusive, had to be handcuffed, and was taken to Dunboyne Garda Station. The respondent refused to give a blood or urine sample and was charged with an offence under Section 13(3) of the Road Traffic Act, 1994. This charge was dismissed in the District Court on the grounds that the arrest of the respondent had been unlawful. The District Judge agreed to state a case for the High Court as to whether he was correct in law in dismissing this charge on the ground that the arrest of the respondent had been unlawful, as the same had taken place on his own private driveway.
4. The offence with which the respondent was charged was that he refused or failed to comply with the requirement to permit a designated doctor to take a specimen of his blood or to provide a specimen of urine. The requirement to do so, under Section 13(1) of the Road Traffic Act, 1994, only arises where the person concerned has been arrested, and there can be no doubt that if there was no lawful arrest of the respondent in the present case, then he was not obliged to give the specimen, either of blood or urine. The essential point of the case is whether the respondent was lawfully arrested. The learned High Court judge held that the arrest was unlawful and that the decision of the learned District judge was correct.
5. In Director of Public Prosecutions v. Forbes (1994) 2 I.R. 542 the defendant had driven into the driveway of a private house belonging to a third party. It was held by the Supreme Court that the arrest was lawful and in his judgment at page 548 O’ Flaherty J. said:-
“It must be regarded at axiomatic that any householder gives an implied authority to a member of the Garda to come onto the forecourt of his premises to see to the enforcement of the law or to prevent a breach thereof. It will be clear that this case is not concerned with any question of entering a dwelling house and, therefore, there is not in the instant case any question of any form of implied waiver of any constitutional right. Further, like any implied authority, it is an implication which the evidence may, on occasion, rebut”
6. In that case there was, of course, no question of there being evidence that the owner of the property had in some way revoked the implied authority to enter. I have no doubt that when the Garda entered the respondent’s premises, he was doing so on the basis of an implied authority, and the only question to be considered by the Court is whether such authority still remained valid at the time of the arrest of the respondent.
7. The case relied upon by the learned High Court judge and in the District Court, and which is relied on by the respondent in this court, is Director of Public Prosecutions v. McCreesh (1992) 2 I.R. 239. As in the present case, the prosecuting Garda became suspicious of the actions of the respondent’s motor car, tried to overtake it unsuccessfully, and the car turned into the respondent’s own driveway. The driver got out of the car and the Garda formed the view that he had committed the offence commonly known as drunken driving. He informed the driver that he was arresting him. When the driver was informed of this, he told the Garda that he was a trespasser and was on private property and should leave immediately. The Garda then put his hand on the drivers’ arm and said he was arresting him and brought him to the Garda car. Hederman J. said at page 250:-
“An arrest consists in or involves the seizure or touching of a person’s body accompanied by a form of words which indicate to that person that he is under restraint. Whilst the older cases held that words alone would not suffice to constitute an arrest, nowadays words alone may amount to an arrest if, in the circumstances, they are calculated to bring, and do bring, to the person’s notice that he was under restraint and he submitted to the compulsion – see e.g. Alderson v. Booth (1969) Q.B. 216
On the facts as found by the learned Circuit Court judge, it is clear that the defendant, on first being told that he was under arrest, did not submit to the compulsion – on the contrary, he told the Garda that he was on private property and was a trespasser and should leave immediately. The relevant ‘arrest’ in this case therefore took place subsequently when the Garda took the defendant by the arm and told him he was arrested and must come to the Garda Station.”
8. I can see little or no distinction between that case and the present case. It is clear from the case stated that the Garda only formed the opinion that the respondent had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place when the respondent got out of the motor car in his own driveway. He was then told by the Garda that he was being arrested and was cautioned, and he told the Garda that the arrest was unlawful since it took place in his driveway. It was only then that the Garda physically restrained the respondent by handcuffing him.
9. I am quite satisfied that the respondent never submitted to being under restraint or, in the words of the judgment in Director of Public Prosecutions v McCreesh, never submitted to the compulsion. I am also quite satisfied that the words used by the respondent were quite clearly a withdrawal of any implied consent to the Garda being on his driveway.
10. In those circumstances, I am satisfied that at the time of the actual arrest, that is the physical restraint of the respondent, the implied consent had been withdrawn, the Garda was a trespasser and the arrest was unlawful.
11. I would dismiss this appeal.

DPP v Pires

[2016] IECA 413
Judgment delivered by Mr. Justice Mahon on the 21st day of December 2016
1. This is an appeal against the judgment of the High Court (Barrett J.) dated 9th July 2015 and the related order of the High Court made on 16th July 2015, and perfected on 11th August 2015.

2. On 20th March 2015, Judge Bryan Smyth, a judge of the District Court, applied to the High Court by way of case stated in relation to three cases which had been heard by him, pursuant to s. 2 of the Summary Jurisdiction Act 1957 as extended by Section 51 of the Courts (Supplemental Provisions) Act 1961, on a point of law. The three cases, while unconnected as between each other, were all concerned with prosecutions for offences contrary to s. 4(4)(b) and (5) of the Road Traffic Act 2010, (drink driving).

3. Insofar as it is necessary to refer separately to the three cases, the following information is relevant:-

Mr. Pires
Mr. Pires was stopped at Fortunestown Road in Tallaght on 1st January 2014 on suspicion of drink driving. Gda. Brady handcuffed Mr. Pires while effecting his arrest. Gda. Brady told the District Court that he did so because Mr. Pires was intoxicated, was larger in stature than he was, he was on his own with him, and he had to transport him in a garda vehicle without an internal protective barrier. There was no evidence that Mr. Pires was aggressive or agitated at any time.

Mr. Corrigan

Mr. Corrigan was stopped at Finglas Road dual carriageway on 28th May 2014 by Gda. Murphy, his attention having been drawn to Mr. Corrigan when his vehicle collided with another vehicle at a roundabout. Having formed the necessary opinion as to the consumption of an intoxicant, Mr. Corrigan was arrested and taken to Finglas garda station. While effecting arrest, Gda. Murphy handcuffed Mr. Corrigan because he was “jittery”. He also said that the appellant hesitated when he placed his hand on Mr. Corrigan to usher him into the back of the patrol car. Mr. Murphy accepted that Mr. Corrigan was not aggressive and was co-operative. He was nevertheless concerned that Mr. Corrigan might become overwhelmed and react in panic because of the position he found himself in. He was also concerned that they were on a busy dual carriageway and that he had a duty of care to ensure the safety of the appellant and the public. He also had to convey Mr. Corrigan to a garda station in a garda patrol car which had no internal protective barrier. He said that he had applied the handcuffs for his own safety and that of the appellant.

Mr. Gannon

Mr. Gannon was stopped on the M50 in Blanchardstown in Dublin on 21st October 2013. Gda. Kelly told the District Court that he had noticed the appellant driving his Ford Focus van at excessive speed as it overtook a garda jeep in which he was a passenger. Mr. Gannon was travelling at one hundred and thirty kmH. The necessary opinion as to intoxication was formed when Mr. Corrigan was stopped by the gardaí and he was handcuffed in the course of effecting arrest. Gda. Kenny told the District Court that he was handcuffed for his own safety, for the safety of the gardaí and the safety of other road users as they were standing on the hard shoulder of the M50 which was very busy at the time. It was accepted that Mr. Gannon was compliant and was not aggressive.

4. In each of the cases, the validity of the arrest of the appellants was challenged on the basis that handcuffing was unnecessary and unwarranted. Having considered submissions from the parties in the three cases, the learned District judge decided that the handcuffing of the three appellants was not justified as a precautionary measure, (and, thus, rejected the evidence of the garda witnesses), and he proceeded to dismiss the cases on the basis of the decision in the Supreme Court decision in DPP v. Cullen [2014] IESC 7.
5. At the request of the prosecution the learned District Court stated a case to the High Court. In it, he posed the following question:-

“Was I correct in law to find the arrest(s) unlawful?”

The Cullen case
6. Central to this case is the decision of the Supreme Court in Cullen. It concerned a driving prosecution in which the arrest of Mr. Cullen was challenged on the basis that he had been unnecessarily handcuffed at the time of his arrest. The facts in Cullen were that a garda sergeant observed Mr. Cullen’s vehicle being driven in an erratic fashion. He stopped him, and having formed the necessary opinion as to the consumption of an intoxicant, decided to arrest Mr. Cullen. The garda sergeant accepted that Mr. Cullen had not used or threatened force in order to avoid arrest, nor had he formed the view to the effect that the conduct of the accused created in the mind of the sergeant a suspicion or concern that he might resist arrest unless restrained. The garda sergeant having placed Mr. Cullen in handcuffs conveyed him to the garda station. The garda sergeant stated that it was his normal practice to place such persons in handcuffs irrespective of the circumstances as it was his experience that such persons might become abusive and resist arrest either immediately prior to, or following, communicating the reason for arrest to them.
7. The questions posed by the learned Circuit Court judge for the opinion of the Supreme Court in Cullen were as follows:-

“(i) On the evidence adduced was I entitled to hold that the placing of handcuffs on the accused following arrest was unjustified on the grounds that Sgt. Moyles did not believe the particular accused was likely to resist arrest or was likely to attempt to escape from lawful custody unless so restrained?
And

(ii) If the answer to the above is in the affirmative was I correct in law in concluding that the placing of the handcuffs on the accused by Sgt. Moyles was a conscious and deliberate breach of the accused’s constitutional rights which rendered the accused’s arrest and detention unlawful and which which obligated me to apply the exclusionary rule in respect of any evidence obtained thereafter?”

8. Fennelly J. answered the first question in the affirmative. He answered the second question by stating that the arrest was unlawful. He deemed it unnecessary to refer to a breach of constitutional rights or the exclusionary rule:-
“5.3 I would in part answer the second question posed by holding that the placing of handcuffs on Mr. Cullen, while unlawful, affected the manner of his arrest rather than the entitlement to arrest him and, thus, did not affect the lawfulness of his arrest or his custody thereafter. In my view a final answer to the question of whether the certificate of alcohol concentration in Mr. Cullen’s case was admissible would, therefore, depend on the view which this Court takes on the current status and extent of the exclusionary rule.”
9. Hardiman J. agreed with the judgment of Fennelly J. Clarke J. in giving a separate judgment agreed with the decision of Fennelly J. in relation to the first question posed by the learned Circuit Court judge, but disagreed in relation to the second.
10. In his judgment, Clarke J., answered these questions as follows:-

“(i) So far as the first question is concerned, I would hold that the trial judge was entitled to form the view that the placing of handcuffs on Mr. Cullen was unjustified on the grounds that the relevant sergeant had no basis for believing that Mr. Cullen was likely to resist arrest or escape unless so restrained.
(ii) I would in part answer the second question posed by holding that the placing of handcuffs on Mr. Cullen, while unlawful, affected the manner of his arrest rather than the entitlement to arrest him, and thus, did not affect the lawfulness of his arrest or his custody thereafter. In my view, a final answer to the question of whether the certificate of alcohol concentration in Mr. Cullen’s case was admissible would, therefore, depend on the view which the court takes on the current status and extent of the exclusionary rule.”

11. In the course of his judgment, Fennelly J. stated (at para. 25):-
“I would entirely accept that any individual member of An Garda Síochána is fully entitled to and may well be obliged to apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular case. The decision must be left to the individual garda dependant on his or her own appreciation of the requirements of the individual case. The nature of the offence, the prevailing circumstances, the personality and character of the individual to be arrested must be taken into account. The law is realistic. It is appreciated that decisions on the necessity for an arrest, the appropriate amount of force and the need for use of handcuffs are often made under pressure of circumstances of urgency, of danger, of flight, and of violence and the threat of violence. Ordinarily, courts are slow to review decisions of garda officers made in the wide range of situations with which they are confronted in the course of their duty.”
12. At para. 38 of the judgment, he went on to say:-
“…In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances. I emphasise of course that it is the police officer who must make that judgment. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest.
He also stated:-
“…the lawfulness of an arrest is determined by the circumstances as the person using the force believed them to be.”

The grounds of appeal
13. The following grounds of appeal are contended on behalf of the appellants:-
(i) The learned trial judge erred in law by allowing the appeal by way of case stated without identifying an error of law in the determination appealed against;
(ii) the learned trial judge erred in law by reassessing the evidence and adjudicating upon same himself;

(iii) the question as to whether a trier of fact afforded sufficient “latitude” to the arresting gardaí is a question not amenable to a standard in law but is a matter solely within the remit of the trier of fact;

(iv) the learned trial judge upheld the appeal on the basis that the District Court judge had afforded “an insufficiently generous measure of judgment” and “insufficient latitude” to the respective gardaí in the course of the arrests. The findings of the learned trial judge amount to an interference with the findings of fact of the District Court judge who heard the evidence in the case;

(v) the learned trial judge erred in law by grounding his determination upon an irrelevant factor, that is, the “alleged” regularity of cases heard by the particular trial judge where the law was applied with a particular result. This does not amount to a principle in law and was not the subject of any evidence in the District Court nor was the issue raised by the DPP or argued before him.

Discussion and conclusion
14. The use of handcuffs to restrain, control and manage arrested persons and prisoners is a common practice. However, it will not always be an acceptable practice. In Cullen, Fennelly J. cited with approval the dicta of Hardiman J. in DPP v. Davies (CCA 23rd October 2000) that:-
“The public depiction of any person, but particularly a non convicted prisoner wearing the double restraints which are now commonly used in the Prison Service, is a depiction of him in a position of humiliation and indignity.”
15. As is made clear from the judgments in Cullen, the law permits the use of handcuffs to restrain a person being arrested where it is deemed appropriate and / or necessary to use them, but not otherwise, and that the decision to use handcuffs is essentially a decision to be made by the arresting officer having regard to the circumstances pertaining at the time.
16. In his judgment in Cullen, Clarke J. remarked:-

“It is true, as Fennelly J. points out, that a person who has a lawful power of arrest must be afforded a reasonable margin of consideration in dealing whether, on the facts of an individual case, handcuffing is necessary.”
17. In the instant case, the learned High Court judge answered the question “was I correct in law to find the arrest of the accused unlawful?”, “No”. In his judgment Barrett J. reiterated the facts of each of the three cases as per the learned District judge’s case stated. He also addressed the issue of the extent to which an acquittal in the District Court can properly be appealed by way of case stated to the High Court. In doing so he reviewed a number of decisions of the Superior Courts, one of which was the decision of Hedigan J. in DPP v. Dardis [2015] IEHC 53 in the course of which reference was made to the case being an appeal by the DPP by way of case stated Hedigan J. stated:-
“This is a procedure exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it. See DPP v. Nangle [1984] ILRM 171. It is confined to a party who is “dissatisfied with the said determination as being erroneous in point of law”. It is not available therefore to a party dissatisfied with a decision of the District Court on the grounds that the District Judge had taken one view rather than another of the evidence or had accorded credence to one witness and withheld it from another. See Fitzgerald v. DPP [2003] 3 IR 247.”
18. In his judgment in the instant case, Barrett J. having considered the various decisions, stated:-
“In summary, the task of the High Court in an appeal such as is now before the court is a very limited one. This is implicitly recognised in the very succinct question put by the learned District Judge in the case stated in respect of each of the three acquittals now before the court, namely “Was I correct in law to find the arrest of the accused unlawful?”
19. In the final part of his judgment, the learned High Court judge concluded that the learned District judge was not correct to find the arrests of the appellants unlawful and that the reasoning of the learned District judge in reaching his conclusions contravened one or more of the principles identifiable in the judgment of Fennelly J. in Cullen. The learned High Court judge identified the principles annunciated in Cullen as including the following:-
(i) An arresting Garda makes a judgment as to what force is reasonable in the circumstances. The law allows a generous measure of judgment in this regard.
(ii) When a Garda is considering whether to apply handcuffs, the following factors must be taken into account:

(I) the nature of the offence;
(II) the prevailing circumstances; and

(III) the ‘BCDP’ (behaviour, character, demeanour, personality) of the individual to be cuffed.

(iii) A realistic attitude is shown by the law to the Gardaí in this regard.
(iv) Despite the generous measure of judgment allowed, and the realistic latitude shown, to an arresting Garda, circumstances may present in which a court later determines that particular handcuffing was unlawful. Because of the generous measure of judgment allowed, and the realistic latitude shown to the arresting Garda, such circumstances should be uncommon. The ‘blanket policy’ of cuffing applied in Cullen is an example of the uncommon.

(v) Ordinarily, the courts are slow to review operational decisions of individual Garda officers made in the wide range of situations which they confront in the course of their duty.

This Court respectfully agrees with the principles as so identified by the learned High Court judge.
20. It is noteworthy that in DPP v. O’Neill and Bohannan (ex tempore judgment of Moriarty J., 1st February 2016). Moriarty J. considered Cullen and, inter alia, the judgment of Barrett J. in the instant case, and he adopted these principles as summarised by Barrett J. as evident from that case.

21. The point of law raised in the case stated concerns the application of the legal principles as enunciated by Fennelly J. in the majority decision of the Supreme Court in Cullen. A judge of the District Court is bound by the doctrine of stare decisis to follow and apply the jurisprudence of the Superior Courts unless the case under consideration is clearly and legitimately distinguishable from that jurisprudence. The obligation to follow the decisions of the Superior Courts is no greater or lesser than the obligation to apply relevant statutory provisions.

22. As Finlay P. stated in DPP v. Nangle [1984] ILRM 171, 173, the case stated procedure is “exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it”. However, that having been said, some decisions are properly to be regarded as involving mixed questions of law and fact. The mere fact that that might be so will not prevent such a decision from being reviewable where there has been an error of law. Thus, in Rahill v. Brady [1971] IR 69, the Supreme Court held that a decision by a judge of the District Court as to whether a particular occasion constituted a special event within the meaning of s. 11 of the Intoxicating Liquor Act 1961 was open to review in an appeal by way of case stated. Budd J. said that such a matter was not a decision on a question of fact only, but “a decision on a mixed question of law in fact”, which involved the construction of a Statute.

23. In Fitzgerald v. DPP [2003] 3 I.R., Hardiman J. stated:-

“It appears to me that the effect of ss. 2 – 6 of the Act of 1957, as amended, is to create a special statutory jurisdiction in the Superior Courts. This jurisdiction is of a limited nature. Firstly, it is appellate: this appears from the latter part of s.2 where a party seeking the case is designated “the appellant”. Secondly, the right to seek a case stated by way of appeal is confined to a party who is “dissatisfied with the said determination as being erroneous in point of law” (emphasis added). It is not available, therefore, to a party dissatisfied with the decision of the District Judge on the grounds that the District Judge has taken one view rather than another of the evidence, or has accorded credence to one witness and withheld it from another. If a defendant is dissatisfied on those grounds, he may appeal by way of rehearing to the Circuit Court. Thirdly, the mode of appeal under the procedure laid down in the Act of 1957 is by way of a written statement “setting forth the facts and the grounds of such determination” and not by way of rehearing. Where the Court of first instance hears the evidence and sees the witnesses, and the appeal is by way of a written statement of the facts and grounds, it appears to me that such appeal must be limited to points of law and principle: see DPP v. Cunningham [2002] I.R. 712. Thus, in DPP v. Nangle [1984] ILRM 171, Finlay P. declined to interfere with an acquittal even though he felt that the respondent’s evidence had “a clear air of implausibility” about it, because that did not constitute a point of law.”
24. I am satisfied in the circumstances that a failure on the part of a judge of the District Court to follow and apply correctly a binding precedent, where that jurisprudence leaves no room for uncertainty or ambiguity, renders the District Court judge’s decision amenable to review by the Superior Courts on a point of law.
25. In Cullen the decision of the Supreme Court is clear. It requires that the decision (as to whether a person is or is not to be handcuffed) must be left to the individual garda dependant on his or her own appreciation of the requirements of the individual case. It is emphasised in the judgment of Fennelly J. “that it is the police officer who must make that judgment”.

26. Therefore when the District judge came to assess the appropriateness or otherwise of the use of handcuffs in the three cases before him he was required to apply a test of primarily subjective rather than objective reasonableness. He was not concerned with whether the man on the Luas would consider that the use of handcuffs was necessary. Rather he needed to be satisfied in each instance that the arresting Garda had made a genuine, albeit subjective, assessment as to what the exigencies of the situation required, and had acted on the basis of that assessment and not on foot of some blanket policy to use handcuffs. If he was satisfied that the Garda had arrived at a judgment in good faith that the use of handcuffs was required, then it mattered not whether the judgment arrived at was objectively reasonable. The enquiry mandated by Cullen is limited to an assessment of whether the garda officers acted with subjective reasonableness and not on the basis of a blanket policy as had in fact occurred in that case. Of course, the presence or absence of objectively reasonable grounds is a matter that can be taken into account in assessing the genuineness of a Garda’s belief. However, that was not the learned District Judge’s approach.

27. In each of these cases the learned District Judge applied a test of objective reasonableness in assessing the appropriateness of the decisions made by the relevant gardaí. He did not find that the reasoning of the three gardaí to use handcuffs was based on any untruths, or that it was exaggerated, or that it was subjectively unreasonable. Moreover, he did not find in any instance that the gardaí did not genuinely believe that the exigencies of the situation required the use of handcuffs. In his “Decision” in case of Mr. Pires, (by way of example), the learned District Judge stated as follows:-

“I found as a fact that the behaviour of the accused in his interaction with Gda. Brady prior to being handcuffed and the reasons for handcuffing as given in evidence by Gda. Brady and set out in para 6 above, did not show any indication that the application of handcuffs was objectively justified.”
28. In fact, the evidence as given by Gda. Brady included the observation that Mr. Pires was of bigger stature than he was, that he was on his own with him, and that he was obliged to convey him to the garda station in a garda vehicle which had no internal protective barrier. Broadly similar reasoning was given by Gda. Murphy in the case of Mr. Corrigan. In Mr. Gannon’s case, Gda. Kenny was concerned that in the event of there being an altercation between himself and Mr. Gannon on the side of the busy M50 motorway lives would be put at risk.
29. The Supreme Court in Cullen recognised that the decision as to whether or not handcuffs should be used in any particular case is best left to the garda officer in question. That they should consider it to be so is readily understandable given that such decisions are required to be made on the spot by gardaí, often in difficult circumstances and while dealing with individuals unknown to them; and also bearing in mind the potential risks that may require to be weighed, being risks not just to the safety of the garda officer concerned but also to others, including other road users, and the accused himself or herself. A genuine assessment must be carried out by the Garda as to what the exigencies of the situation requires, with the safety of the public generally, the person being arrested and the arresting garda or gardaí being of primary importance. The use of handcuffs simply as a routine measure or in the absence of any assessment of possible risks will potentially render a detention in handcuffs unlawful.

30. Counsel for the appellants, Mr. McDonagh S.C, strongly argued that the findings of fact made by the learned District judge could not be re-visited by the High Court as part of the case stated process. It was pointed out that this was not a consultative case stated. However, the issue in these cases concerns whether there was a mis-application or an erroneous application of the law (as stated in Cullen) by the learned District Judge in assessing whether the use of handcuffs by the Garda concerned in each instance was unjustified so as to render the arrest and detention of the relevant accused unlawful. That being the case, it is necessary to consider the reasoning adopted by the learned district judge in the determination of facts by him. Put another way, it is necessary to consider how the learned District judge approached the task of making findings of facts and applying relevant legal principles in that process. In those circumstances it is necessary to look closely at the findings made by the learned District judge and his reasons for making the findings that he did.

31. In the case of Mr. Pires, the evidence was, as already summarised; Gda. Brady said he made the decision to handcuff Mr. Pires because he was intoxicated and was bigger in stature than he was, and that he had to convey Mr. Pires to the garda station in a garda vehicle which did not have any internal protective barrier. The learned District court judge found that there was an absence of any indication that the application of handcuffs was objectively justified. He said that he had carefully considered the evidence in light of the judgment in the Cullen case, and in that respect he agreed with the submissions made on behalf of Mr. Pires. In summarising the submissions made on behalf of Mr. Pires, the learned District judge stated:

“It was submitted that the decision in Cullen requires that particular consideration must be given to the behaviour and demeanour of a person prior to being arrested with the application of handcuffs, for that arrest to be lawful. He submitted that the scope of the law as stated in Cullen should not be interpreted as applying only to cases where an arresting member applied handcuffs as a matter of an express policy. He argued that as the accused was fully co-operative and not in any way aggressive or disruptive, the application of the handcuffs were unreasonable and unnecessary force as the behaviour and demeanour of the accused did not necessitate or objectively justify such force. He submitted that the reasons given by Gda. Brady, as to the application of the handcuffs, were grounded on factors which were general in nature and disregarded the accused’s behaviour and demeanour..”
32. However, such submissions did not accurately reflect the decision of the Supreme Court in Cullen. Cullen requires that the decision of the garda to use handcuffs when making an arrest in a drink driving case ought to be made on the basis of his, the officer’s, perspective as to the risks that might arise if handcuffs were not used. In Cullen Fennelly J. stated that “it is the police officer who must make that judgment”. The fact that a judge might take the view that the garda is being unduly cautious is irrelevant. In a particular case it would, of course, be open to a judge to decide that the reasons provided by the arresting officer to justify the use of handcuffs are not based on fact or are incorrect or implausible for one reason or another, and on that basis reject them. For example a decision by an arresting garda to place handcuffs on a suspected drink driver because of his concern that the person might run onto a busy road and endanger both himself and road users might be undermined if the road in question was a quiet country boreen.
33. Crucially there was no finding by the learned District Judge that Garda Brady did not genuinely hold the belief that the use of handcuffs was necessary in the circumstances as he perceived them to be.

34. In the case of Mr. Corrigan, Gda. Murphy’s evidence was that he handcuffed Mr. Corrigan, primarily, because he was required to drive alone with him to the garda station and was concerned that unless restrained, Mr. Corrigan might become aggressive. The decision was said to be been made to protect himself, Mr. Corrigan and the public. As in the case of Mr. Pires, the learned District judge said he carefully considered the evidence and the submissions of the parties and that he agreed with the submissions made on behalf of the appellant. Those submissions were to the effect that:-

“That the application of handcuffs in the circumstances was precautionary in nature and that there was no evidence showing that the use of handcuffs was necessary or objectively justified in the circumstances, even allowing for a margin of appreciation on the part of the arresting garda.”
35. Again, as in the case of Mr. Pires, this submission suggested an erroneous understanding of the decision in Cullen. Again, there was no finding by the District Judge that Garda Murphy did not genuinely hold the belief that the use of handcuffs was necessary in the circumstances as he perceived them to be.
36. In the case of Mr. Gannon, the evidence was that Gda. Kenny used handcuffs because of his concern that a struggle might ensue on the side of a very busy motorway and that a major incident might result. In that case, Gda. Kenny said that prior to using hand cuffs his practice was to assess individuals in the context of his own safety, the safety of the accused person, and the safety of other road users. It was submitted to the learned District judge on behalf of Mr. Gannon that “the behaviour of the accused was the important context and in the absence of anything pertaining to the behaviour of the accused, the Court could not have regard to a context which was baseless”. However, the concerns of the garda were not “baseless”. The arrest of Mr. Gannon took place on a very busy section of the M50 motorway where cars were cars were travelling at speed, and in addition weather conditions were poor. While in this case the learned District judge did not specify state that he had adopted the submissions put forward on behalf of Mr. Gannon in reaching his decision, it is apparent that his decision was based on such submissions. I am satisfied that such submissions did not accurately reflect the decision in Cullen.

37. Yet again, there was no finding by the learned District Judge that Garda Kenny did not genuinely hold the belief that the use of handcuffs was necessary in the circumstances as he perceived them to be.

38. As stated earlier in this judgment, the misapplication by a District judge of a legal provision (statutory or otherwise), or the failure to properly apply precedent law, may constitute a point of law properly reviewable by the High Court on an appeal by way of case stated. As it was required to do in this case, it will on occasion be necessary for the High Court to examine and scrutinise the reasoning process engaged in by the learned District judge in reaching his or her decision, including findings of fact, in order to determine if a point of law exists, such as would justify the High Court’s intervention.

39. This is quite different to reviewing a fact, or the facts, as found by the learned District judge where such fact or facts were based on a determination arrived at properly and in compliance with applicable legal principles. In such a case an appeal to the High Court by way of case stated would not be the appropriate remedy, rather that would be to appeal to the Circuit Court and thereby avail of a complete re-hearing.

40. Insofar as these cases are concerned the learned District judge was required to make his findings on the basis of, and with full regard to, the decision of the Supreme Court in Cullen. I am satisfied that he did not do so.

41. That being so, I agree with the decision of the learned High Court judge in answering ‘No’ to the question posed by the learned District judge, “was I correct in law to find the arrest of the accused unlawful”.

Connors v. Pearson.

[1921] 2 IR 51

 

MOLONY C.J. :

The plaintiff, Timothy Connors, is an infant, and sues by his father as next friend, and the defendant is the Commandant of the Royal Irish Constabulary Depot. The statement of claim alleges that on the 14th of February, 1919, the defendant wrongfully imprisoned the plaintiff at the depot, and there wrongfully detained him till the 9th of April, 1919. The defendant in his defence traverses the acts complained of, and alternatively alleges that the plaintiff, by reason of his actions in aid of the administration of justice, was in grave danger of life and limb from the members of a criminal organization whose activities were widespread throughout the country, and that it was necessary for the protection of the plaintiff that he should be detained in a safe place and guarded, and the acts complained of were done by the defendant, if at all, in the discharge of his duty us a peace officer for the prevention of criminal attacks upon the plaintiff. Upon these pleadings issue was joined, and the plaintiff also submitted that the special defence was not good in law.
The facts of the case are few and simple. The plaintiff lives at Greenane, in the County of Tipperary, close to Soloheadbeg, and attends the local National School. At Soloheadbeg two policemen who were guarding a cart containing explosives were murdered, and on the 10th of February, while District Inspector Neylan was pursuing inquiries in reference to the crime, he met some children, including the plaintiff, coming from the school, and proceeded to question them. The plaintiff made a statement to the District Inspector, but before he hud completed it his sister approached and called him away, and afterwards his father came,
and told the boy to go home. As the boy refused to tell the District Inspector anything more while the father was there, the District Inspector told the father that he would have to take the boy to the barrack to get a complete statement, and he accordingly took the boy by motor to the barrack, where he was detained until the 14th of February, when he was transferred to the depot at Dublin, accompanied by Sergeant Faughan, and he was kept there until the 9th of April, 1919. He was undoubtedly detained against his will; but, as the boy himself stated, the police, and particularly Sergeant Faughan, who accompanied the boy to the depot and remained with him the whole time, treated him kindly.
At the close of the plaintiff’s case, Serjeant Sullivan asked for a direction on the ground that there was no evidence to bring the plaintiff into communication with the boy, or that the defendant had personally intervened in respect to the boy. Mr. Justice Pim refused the application, and, in my opinion, he was quite right in doing so. It is quite true that the boy had no personal communication of any kind with the defendant; but the boy was detained for two months in the depot by the police, who were under the control of the Commandant (see 22 & 23 Vict. c. 22, s. 4), and his affidavit, which was sworn on the 10th April, 1919, shows that the defendant was fully aware that the boy had been at the depot, as he describes it, “for some time past,” and had left the depot for home the previous day. Having regard to the position of the defendant, the letter which was written to him by the plaintiff’s solicitor on 12th May, 1919, and his reply to the statements in his affidavit, there was, in my opinion, ample and indeed coercive evidence that the defendant was answerable in law for the detention of the boy.
It is the manifest duty of this Court to see that the liberty of the subject shall not be restrained unless under the process of law, and where the jury has found that the defendant caused the plaintiff to be taken and detained, the onus of proving that he had legal justification for the act lies upon the defendant. The defendant was not examined himself, but witnesses were produced on his behalf for the purpose of justifying his action. District Inspector Neylan deposed to the circumstances in which he removed the boy to the barrack and afterwards sent him to the depot, and he stated that in his opinion the plaintiff’s life would have been in danger if he had been left where he was; but in cross-examination he said that he took the boy to get him away from his father’s influence, and that, having regard to the statement which the boy had made, he would not have taken the responsibility of sending him back. It was said that the boy had made a statement, which was not, however, produced or given in evidence, implicating certain persons who have since absconded.
County Inspector Langhorne stated that in his opinion any person giving evidence or suspected of giving evidence would be in great danger of his life, but he also said that, while there was a good deal of unrest in the county in January, there was no overt crime, except frequent raids for arms and drilling.
Evidence was also given by Constable Rowse, to the effect that on the 2nd February, 1919, he posted at Rosegreen Roman Catholic church a copy of a proclamation offering a reward of £1,000 for information as to the murders, and that after Mass he found that the proclamation had been removed and another one substituted in its place, to the effect that any person found giving information about the shooting of the peelers would meet the same fate as the peelers. This evidence was produced on the part of the defendant with the object of showing that there was a considerable amount of unrest in the county, and that the plaintiff’s life would, or, at least might, have been in danger if he had returned to his own home immediately after he had made the statement to the police, which was known or suspected to implicate certain persons. The jury were unable to answer the question put to them, as to whether the defendant detained the plaintiff, genuinely believing that his life was in danger, and in order to protect his life; but I am of opinion that even if the jury answered this question in the affirmative, it would not amount in law to a justification of the defendant’s action. It would certainly seriously imperil the liberty of His Majesty’s subjects if, on every occasion that a police officer thought that the life of a witness would be in danger if he returned to his own home, he were at liberty to arrest and detain him for such period as he considered necessary. Mr. Serjeant Sullivan, however, asserted this proposition, and said that the subject is protected by reason of the right which he has of ultimately submitting his case to a jury and of obtaining their opinion as to the reasonableness of the police officer’s conduct. There is no foundation in law for such a proposition. Police officers have certain rights given to them, and duties imposed upon them, in regard to the preservation of the peace, and they may be justified in temporarily restraining the action of an individual in order to avert a menace to the public peace; but this is a power which is confined to cases where it is manifest that a breach of the peace is imminent, and can be averted in no other way except by restraining the action of the individual.
The first case of importance in which this principle was established was Humphreys v. Connor (1). In that case the plaintiff brought an action for assault, and the defendant pleaded that he was Sub-Inspector of Constabulary, and that the plaintiff was walking through the street of the town of Swanlinbar in open day, at about 12 o’clock noon, wearing a party emblem, namely, an orange lily, the wearing whereof was calculated to provoke animosity; and on the refusal of the plaintiff to remove the said emblem, the defendant “as such sub-inspector, in order to preserve the public peace, which was likely to be broken in consequence of the said conduct of the plaintiff, and to protect the plaintiff from the said threatened violence, and which violence the said several persons who were provoked by the conduct of the plaintiff in consequence of the said conduct were likely to inflict upon the said plaintiff, and in order to restore order and tranquillity in said town, then gently and quietly and necessarily and unavoidably removed the said emblem from the plaintiff.” The plaintiff demurred to this defence, but the King’s Bench over-ruled the demurrer and held that the defence was good. This case shows that a constable, who is charged with the solemn duty of seeing that the peace is preserved, may remove from an individual what he sees to be a provocation to a breach of the peace; but there is no analogy between what must be done in order to prevent a breach of the peace then imminent and the forcible detention of a person for over two mouths, because the person who detains him believes that his life may be in danger if he sets him at liberty.

The case of O’Kelly v. Harvey (1), which was also relied upon by the defendant, does not in any way support the defendant’s case. That was an action for assault, brought by Mr. O’Kelly, a Member of Parliament, against the defendant, who was a magistrate, the assault being alleged to have been committed in removing the plaintiff when he was engaged in holding a lawful meeting. The defendant alleged that the assault was justified, because he believed, and had reasonable grounds for believing, that a breach of the peace would occur if the meeting being held by the plaintiff was allowed to continue, and that public peace and tranquillity could not otherwise be preserved than by separating and dispersing the plaintiff and the others so assembled; and that the people having neglected to disperse after having been requested to do so, the defendant laid his hand upon the plaintiff, using no more force than what was necessary, for the purpose of dispersing the plaintiff and the others so assembled. In the Court of Appeal the defence was held good, on the ground that the act complained of was necessary, in order that the defendant should perform his paramount duty to preserve the peace unbroken. Law C. in that case thus stated the obligations of the defendant: “The question then seems to be reduced to this: assuming the plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the defendant believing, as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the plaintiff’s meeting, was the defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under the circumstances, the defendant was not to defer action until the breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken, and that by whatever means were available for the purpose. Further, the duty of a Justice of the Peace being to preserve the peace unbroken, he is of course entitled, and in fact bound, to intervene the moment he has a reasonable apprehension of a breach of the peace being imminent, and therefore he must in such cases necessarily act on his own reasonable and bona fide belief as to what is likely to occur. Accordingly, in the present case, even assuming that the danger to the public peace arose altogether from the threatened attack of another body on the plaintiff and his friends, still if the defendant believed, and had just grounds for the belief, that the peace could only be preserved by withdrawing the plaintiff and his friends from the attack with which they were threatened, it was, I think, the duty of the defendant to take that course.”
To the same effect is the decision of this Court and of the Court of Appeal in Coyne v. Tweedy (1). These cases require only to be stated to show how essentially different they are from the present. They proceed upon the principle that a police officer or a magistrate, whose obligations are similar to those of a peace officer, may, in the presence of imminent danger, commit what would otherwise be an assault in order to prevent a breach of the peace; but there is absolutely no authority for the proposition that if a peace officer believes that a person’s life would be in danger if he returned to his own home, the officer is entitled to detain the person by force for such a period, however long, as he may consider necessary.
Mr. Serjeant Sullivan, realizing the force of these cases, asked the learned Judge at the trial to put the following question to the jury:Was the detention of the plaintiff necessary for the protection of the plaintiff against a felonious breach of the peace directed against him? The learned Judge refused to put the question, and, in my opinion, rightly, because there was no evidence whatever that there was any felonious breach of the peace contemplated against the plaintiff which would justify his compulsory detention Serjeant Sullivan asked that the further question should be put to the jury:Was the detention of the plaintiff reasonably necessary to enable the plaintiff’s evidence to be available in proceedings to be taken against the Soloheadbeg murderers? But he admitted at the hearing before us that even if such a question were put and answered in the affirmative, it would not be a justification in law of the defendant’s action.

In my opinion there was no justification in law for the detention of the plaintiff, and, as the defendant is responsible for such detention, judgment must be entered for the plaintiff for the sum of £75, together with the costs of the trial and of this motion.

GIBSON J. :
This action for detention amounting to false imprisonment raises novel questions, and it is to be regretted that the Crown did not have a shorthand note as in Coll’s Case (1), and the numerous reports in the State Trial Reports where less serious issues were involved. The defendant’s attempted justification is without legal precedent hitherto, and though our common law, as a living force, must be applied to the changing conditions of society, such development must be in accordance with settled principles; mischiefs which it cannot meet must be dealt with by legislation.
The argument has been directed to three points:
1. Was the defence of justification pleaded valid, and was there evidence to support it?
2. Was there evidence of detention as regards the defendant?
3. Was there misdirection as to defendant’s responsibility and as to damages? The two latter matters are of minor moment.
1. Crown counsel urged that where it was necessary for personal protection against apprehended future unlawful violence, constituting a breach of the peace, the peace officer could take or detain the person in peril for such time as would be required for his safety, and that the necessity of the preventive detention and its reasonable period of continuance were to be determined by the jury in each particular case. The two cases relied ondecided on demurrer, admitting the truth of the defence in factas supporting in principle the defendant’s contention have been already sufficiently discussed by my Lord. In O’Kelly v. Harvey (2) the demurrer was allowed to the 11th and 12th paragraphs of the defence, which, though averring reasonable and probable grounds for belief, did not aver that the meeting was in fact unlawful. The conspiracy alleged was, in the opinion of the Lord Chief Baron (3), illegal, and a meeting to promote it would have been an unlawful assembly. The 13th paragraph, which sets out the grounds on which the necessity of the defendant justice’s action in order to preserve peace unbroken proceeded, was held good. The Court of Appeal affirmed the decision below. The 13th paragraph did not aver, as the 11th and 12th paragraphs did, that the meeting was in pursuance of an illegal conspiracy; the Court held that, assuming that the meeting was not for an unlawful purpose, still necessity justifying the defendant was disclosed. That an assemblage for the purpose of carrying into effect a criminal conspiracy is an unlawful assembly and indictable breach of the peace was not questioned, and was acted on by the Chief Baron in Crimes Act cases. It was so held in Rawlins v. Ellis (1). The decision in O’Kelly v.Harvey (2) was applied in Coyne v. Tweedy (3), where the plaintiff, assumed to be lawfully in possession of the chapel, was turned out by the police officer, in whose presence the rival clergyman, Father Conroy, had effected a forcible entrance. The above cases establish that where a breach of the peace is imminent, and can only be avoided by separating the probable combatants, a peace officer is justified by the existing necessity in doing what is required to avert the collision, though one of the parties may not be the aggressor, and may be innocent of any antecedent provocative misconduct.
The following points of distinction between these authorities and the present case are obvious:1. The actions were for assault, which differ widely from actions for imprisonment: Harvey v. Mayne (4). 2. In Humphries v. Connor (5) and O’Kelly v.Harvey (2), the facts showing necessity of intervention were specially pleaded so as to enable the Court to judge. 3. No question arose as to the imprisonment of an innocent person without his consent in order to protect him against future breaches of the peace likely to be committed against him.
The present case lies entirely outside the above authorities, and the defence is insufficient in law. Not only does it omit to plead special facts, but it also does not show why forcible detention in Dublin in lieu of police protection was necessary, or whether the period of detention was reasonable. In the Crimes Act of 1887 (1),sect. 1, the power of preliminary inquiry, on the model of Scotch precognition, is guarded by express conditions; but there is no provision that the person or child interrogated should be interned, though the danger to him, if incriminating evidence was given, would be apparently much greater than here.
Apart altogether from pleading form, the evidence fails to support any defence on this supposed principle of necessity. The first interview with the boy was casual. What he then said, or his subsequent statements to the police, we do not know; there was probably something tending to incriminate the persons alleged to have absconded. The plaintiff was living at home with his father, and any danger to him would have arisen from his adhering to his supposed story. He was taken away to remove him from the influence of his parent, of whom he was afraid, and who was not in sympathy with the efforts of the police. The reason for his removal is based, not on objective facts establishing actual and immediate peril, but on the opinion of the local police as to prospective danger, which opinion, however reasonable, is not, as mere belief, a justification in law, as appears from the successful demurrers in O’Kelly v. Harvey (2).Headquarters had no evidence besides that disclosed at the trial. The detention of the boy in Tipperary was the act of the local officers. His removal to Dublin does not represent their decision as to the form of protection necessary. Thus the necessity of the primary detention in Tipperary rests on belief of the police officers there; the form of protection, by confining the plaintiff in Dublin, represents a headquarters’ opinion, the exact grounds of which are left to conjecture. The change of local conditions enabling the plaintiff to return to his home safely, and the date of such change, are left uncertain. Entick v. Carrington (3) is instructive on the whole position. If belief that a person intends to commit a crime, unsupported by overt acts of attempt, is insufficient to justify his arrest, how can such belief justify confinement of the person, the object of the supposed future illegal act?

Being of opinion that if the defendant had custody of the plaintiff he is without defence, I now proceed to consider was there evidence to establish such custody. The defendant was an Assistant Inspector-General and Commandant, that is, governor of the depot. He is said not to have been the Assistant Inspector-General who visited Tipperary before the plaintiff’s removal. The duties of the Commandant as to control of the establishment were not proved. The defendant was not examined. The circumstances in which the plaintiff was brought to the depot are not disclosed. One would suppose that the plaintiff would not have been taken in as an inmate, and kept in strict confinement in the manner described, without some written authority or entry in the books. Sergeant Faughan, who accompanied him, was not called to prove the order on which he acted, or what occurred on arrival when the plaintiff was handed over.
Looking at the letter of the 12th May from plaintiff’s solicitor, answered a week after, on the 20th, and the defendant’s affidavit on the habeas corpus application, the defendant’s official position as Commandant and Assistant Inspector-General, and the exceptional circumstances in which the plaintiff was confined in the Constabulary depot, there was evidence, in my opinion, of the defendant’s responsibility as custodian. The situation called for explanation from the Commandant, whose description as such suggests control. If the boy was kept without defendant’s knowledge or consent by some superior authority, there is nothing to show this.
The remaining point is as to alleged misdirection in relation to custody and damages. The action was for wrongful detention from February 14th. The Judge left a question as to taking and detention. The taking here mentioned, Serjeant Sullivan contends, covers, and was intended to cover, the entire period from February 10th, when the local police controlled the plaintiff’s movements. Plaintiff’s counsel answer that the taking only describes the first step, when plaintiff was received into the depot. Possibly the Judge considered that if the defendant took over the plaintiff in Dublin, he must be assumed to have authorized the earlier arrangements as to transport on the same day, the 14th. There is no evidence whatever that the defendant was acquainted with what had been done on February 10th or in the intervening period before the 14th. It would be likely that he would have got or given instructions as to transport and reception on the 14th. The Judge stated his opinion to the jury, that the uncontradicted evidence indicated detention by the defendant. Still he left the question to the jury. I do not think that damages were assessed in respect of the days before the 14th, or that what had happened in Tipperary influenced them. Admittedly the defendant’s justifications, if any, entirely rested on the Tipperary evidence, but his legal responsibility began on the 14th.
I have come to the conclusion that the verdict should not be disturbed, as the supposed alleged misdirection would not have affected the result, and there has been no substantial miscarriage. Under our present practice, where a new trial is directed on account of fault of jury or Judge for which the litigant is not to blame, the costs of the first trial and of the argument abide the final result, so that the broad question of the invalidity of the defence having been now decided, there would be no advantage in prolonging the litigation. It is unnecessary to examine the questions formulated for the jury. That, asking was the detention for the purpose of interrogation, raised an issue not pleaded, and defendant’s counsel disclaimed relying on any such ground of defence, whichmanifestly no defencewas inconsistent with the prolonged period of detention. The circumstances of the confinement described by the plaintiff point rather to desire to guard his moral security from illegitimate and undue influence and pressure than to anxiety for his physical safety, which, while he was with his father, was not likely to be interfered with.
Imprisonment of a possible witness quia timet to protect him without his consent from unknown malefactors or intimidation is not within any common law principle of justification, and must be authorized, if at all, by statute. The protection of such witness must be found in the application of criminal law to offenders guilty of overt actsa remedy in many cases perhaps rather theoretical than real. There may possibly be exceptional cases where, danger existing as a manifest actual fact, temporary interference with liberty of locomotion such as might amount to what the law treats as imprisonment ( Bird v. Jones (1)) might be lawful, but this case discloses nothing of such character.

GORDON J. :
I agree in the judgments which have lust been delivered. The jury have found that the defendant caused the plaintiff to be taken and detained, and they have assessed the damages at £75. If there is evidence to sustain the first part of this finding, the onus lies on the defendant to show why judgment should not be entered against him for £75 and costs. Serjeant Sullivan contends that there is no evidence that the defendant caused the plaintiff to be either taken or detained, and at the trial he asked for a direction on what is practically the same grounds, namely, that no evidence to bring the defendant into communication with the plaintiff, or that the defendant had personally interfered with the plaintiff, had been produced. He further contends that in any event there is no evidence that defendant took the plaintiff or caused him to be taken, and that the amount of damages must necessarily have been affected if the jury erroneously came to the conclusion that the defendant had caused the plaintiff to be taken as well as detained, and he says that the taking referred to in the question was the taking of plaintiff by the police at Greenane, Co. Tipperary, and that the defendant is not liable for the taking or detention in Tipperary. The statement of claim complains of wrongful imprisonment from 14th February at the depot. That it was the taking at Greenane was referred to in the question is, I think, evident from the other questions and the learned Judge’s report of the trial. I see no evidence that the defendant personally had anything to do with the taking or detaining of the plaintiff in Tipperary. The earliest period at which he has been shown to have anything to do with him was when he was brought to the depot. But assuming all this, except Serjeant Sullivan’s contention as to its effect upon damages, I am not satisfied that it has occasioned any substantial wrong or miscarriage in the trial, if there was evidence to sustain the part of the finding that relates to the detention at the depot. The plaintiff’s evidence is that the police were kind to him, and that he was not afraid at all, and I take it this applies to the whole period from the time he was taken at Greenane till he returned to his house, and therefore the substantial complaint was as to the
detention. The whole period of detention was fifty-six days four in Tipperary and fifty-two at the depotand I cannot think that the four days, even coupled with the actual taking at Greenane, would have made any material difference in the amount of damages found by the jury.
Then, was there evidence upon which the jury could reasonably find that the defendant had detained the plaintiff? It was sworn by the plaintiff that on the 14th February he was taken to the depot, and that he was kept there for a long time. His mother swore that he returned home on 8th April. The defendant was not examined, but he had on the 8th of April made an affidavit in the habeas corpus application, which was put in evidence, and in which he described himself as Commandant at the depot, and stated that the plaintiff was at the depot for some time past, and that he had left. It is stated in the statement of claim, and not specifically denied by the defendant, that he was Commandant of the depot in which the plaintiff was detained. As Commandant he had control of the depot in which plaintiff was detained. I am satisfied from this that there was sufficient evidence upon which the jury could find, and properly find, that the plaintiff had been detained by the defendant.
This being the state of the case, the onus was upon the defendant to justify this detention, and this was sought to be done under the defence which the Chief Justice has read. The plaintiff says it discloses no legal defence to the action. The Chief Justice has given a summary of the evidence directed to this defence. The jury found that the plaintiff was taken for the purpose of interrogating him, but as to whether the defendant took him or detained him genuinely believing that his life was in danger, and in order to protect his life, the jury have given no answer. Serjeant Sullivan asked the learned Judge to put the question, “Was the detention of the plaintiff reasonably necessary for the protection of the plaintiff against a felonious breach of the peace directed against him?” This question was not put, and it is contended for the defendant that an answer to it in the affirmative would have been an answer to the action, that there was evidence upon which the jury might have reasonably so answered it; and, this being so, inasmuch as the question had not been put, there
must be a new trial of the action; the argument being that upon the authority of Humphries v. Connor (1) and O’Kelly v. Harvey (2),a police officer can justify a trespass to the person if he can show that it was done necessarily in order to prevent a breach of the peace being committed against the person who complains of the trespass, and that the questions of whether the trespass was necessary, or whether it extended beyond the necessity in the particular case, were for the jury. Put thus broadly, this is a very far-reaching proposition, and would mean that if any person was in danger of being assaulted, or of having any outrage against the peace committed upon him, a police officer could arrest and detain him until the danger had ceased to exist, subject only to being able to satisfy a jury, if an action was brought against him, that such arrest and detention were necessary to prevent a breach of the peace directed against the person so arrested and detained. I do not think the cases cited, nor do any which I have been able to discover, support this contention. The questions involved in Humphries v. Connor (1) and O’Kelly v. Harvey (2) have already been sufficiently dealt with. In my opinion these cases do not support the proposition contended for as being applicable in this case. Each of them was decided upon an assumption of the truth of the particular facts and circumstances set out in the defence. In each of them the defendant alleged that he believed, and reasonably believed, or set out facts which showed, that a breach of the public peace was imminent, and that it was necessary to do what was complained of in order to prevent its occurrence. In my opinion they furnish no authority for the contention that a peace officer may detain for an indefinite time a person who has done nothing wrong or illegal, merely because his detention is necessary in order to prevent a breach of the peace being committed against him. No doubt, in certain cases such detention might prevent the person detained from suffering serious injury, or even the loss of his life, and his being at large might result in a breach of the peace being committed against him, and if he agreed to the detention no question could arise. But when he does not agree, as in this case, then, in my opinion, such detention, unless in so far as it is necessary to prevent imminent and immediate danger of a breach of the public peace, or of an attack upon him by other parties, cannot be justified; and even an affirmative answer to Serjeant Sullivan’s question would not, upon the facts proved in this case, have entitled the defendant to succeed in the action.
H. J. M’C.

The defendants, Scott and Pearson, respectively appealed to the Court of Appeal, and the appeals came on for hearing on the same day.
CONNORS v. PEARSON (1).

 

O’CONNOR M.R. :

This is an action for false imprisonment. The plaintiff is a little boy. The defendant is the Commandant of the R.I.C. Depot, Phoenix Park.
The material facts are these: a murder had been committed in the County Tipperary. The police were making inquiries in the locality, with a view to get evidence which would bring the guilty parties to justice. On the roadside they were putting some questions to the plaintiff about the murder when his sister and subsequently his father interfered. The police then took the boy to the local police barracks, where he was detained for a few days, and from thence he was brought by the police to the R.I.C. Depot in Dublin, where he was detained, until he was released on the 19th April, 1919. It is only the imprisonment in Dublin that is complained of. It is not sought to hold the defendant responsible for the arrest and detention in the County Tipperary. It is admitted now that if the detention in Dublin was illegal, the defendant is the responsible party.
The position of Commandant, prima facie, carries with it the control of the depot and responsibility for the admission, detention, and discharge of all persons at the depot.
The learned Judge told the jury that the defendant’s responsibility should be taken to have commenced with the original arrest in the Co. Tipperary on the 10th February. This, I think, was wrong, because the defendant was not brought into privity with the plaintiff until the 14th, when he was brought to the depot; but I cannot think that this led to any substantial miscarriage. It only meant an addition of four days’ imprisonment to about forty-seven, and, as there was no complaint of harsh treatment or personal inconvenience, there cannot have been any substantial increase in the damages awarded. I doubt if it meant any increase. The misdirection did not affect such a substantial matter as that in Bray v. Ford (1), which was an action for libel against a solicitor, the principal libel against him being that he improperly made profit costs in a matter in which he occupied a fiduciary position. The learned Judge at the trial told the jury that in the circumstances he was legally entitled to charge profit costs. This, of course, was a material fact which the jury should take into consideration, because it meant that the accusation had nothing to support it. The libel complained of contained other defamatory matter, which entitled the plaintiff to a verdict. The jury assessed the damages at £600. The House of Lords, reversing the Court of Appeal, directed a new trial, on the ground that there was a substantial miscarriage. Lord Halsbury based his judgment on the fact that an important and serious topic had been improperly withdrawn from the juryviz., that the main charge made against the plaintiff was well founded. Lord Watson, in his judgment, said that in one aspect, that presented to the jury by the learned Judge, the accusation made by the defendant conveyed a wholly baseless and libellous charge, while in the other aspect, which the House held to be the true one, a well-founded charge was made, which was followed up by other libellous imputations. That was a wholly different case from the present. I see nothing in the misdirection that would warrant an order for a new trial.
But a special defence justifying the detention was pleaded. It is as follows:In the alternative the defendant says that the plaintiff, by reason of his actions in aid of the administration of justice, vas in great danger of life and limb from the members of a criminal organization, whose activities were widespread throughout the country, and it was necessary for the protection of the plaintiff that he should be detained in a safe place and guarded, and the acts complained of were done by the defendant, if at all, in the discharge of his duties as a peace officer for the prevention of criminal attacks upon the plaintiff.
In my opinion this was a demurrable defence. It is entirely novel, and there is no authority to support it. The cases which have been cited are no authority for it. I say nothing more about this now, because I have dealt with them in my judgment in M’Laughlin v. Scott (1). But further, the evidence does not support the defence. No one could read the evidence of District Inspector Neylan without seeing that the object of the original arrest was to procure evidence. There is no affirmative evidence that the plaintiff was subsequently detained for the purpose of protecting him. The District Inspector merely stated that in his opinion the plaintiffs life would have been in danger. He was not asked nor did he state when that opinion was formed, whether it was before or at the date of the arrest and detention in Co. Tipperary. It may have been only the opinion held when he was giving evidencean opinion formed by the light of his latest experience. The evidence of the County Inspector is open to the same criticism, with the added observation that it was entirely general in its character, as it applied to all witnesses. The defendant gave no evidence, with the result that as to the period of detention in Dublin from the 14th February till April, when he was released, there was no evidence that the purpose operating in the defendant’s mind was to protect the plaintiff. Indeed, I feel that I am justified in going further, and holding that, as the purpose of the original arrest and detention in the Co. Tipperary was to procure evidence, that purpose continued, no evidence having been given of a change of purpose. In my opinion the appeal should be dismissed with costs.

RONAN L.J. :
In this case we must either, 1, dismiss the appeal, which means affirm a judgment for the plaintiff for £75 and costs of the entire action; or, 2, make some other order which we think the Court below ought to have made.
I am of opinion that the law prohibits us from making any other order than (a) an order dismissing the action, or (b) an order for a new trial. We have no power to enter judgment for any sum less than £75, except by consent. This is admitted, and is settled by the cases of Bray v. Ford (1) and Watt v. Watt (2).These cases are not, in my opinion, rendered less applicable to the present by the decision of the majority of the House of Lords in Lionel Barber & Co. v. Deutsche Bank (Berlin) London Agency (3).There the verdict was reduced, not by substituting one sum for unliquidated damages for another, but by taking from the verdict a specific liquidated sum of £460, which the jury were by misdirection told they might include in their verdict.
It is clear that we ought not to dismiss the action. It is equally clear, in my opinion, that we cannot dismiss the appeal, and allow a judgment for £75 to stand. The only possible order in these circumstances is an order for a new trial, and there has been no suggestion, either here or in the King’s Bench Division, that there is any other alternative.
The facts and circumstances of the case divide themselves naturally into two parts, viz.: 1, What took place prior to the plaintiff’s reception at the depot, i.e. arrest and four days’ detention and removal in custody to Dublin. 2, What took place after his reception there. The detention and imprisonment complained of in the statement of claim is specific: “On the 14th February the defendant wrongfully imprisoned the plaintiff at the Constabulary Depot, Dublin, and there wrongfully detained him till the 9th of April.” The only other matter is a charge of conspiracy, which the Judge directed the jury to find for the defendant, and no question arises in reference to it. The consent admits that the defendant in fact detained the plaintiff at the depot. I shall assume for this part of my judgment that the Judge was entitled to direct the jury that the defendant had not justified this detention. On this assumption, therefore, the plaintiff was entitled to damages for this detention, and this is all that is claimed in the statement of claim. I shall call these damages X. On the other hand, there is really no pretence that the defendant is responsible for what took place prior to the reception at the depot, viz., arrest by armed men, detention for four days in a police barrack, removal in custody, and a long journey to Dublin. I shall call the damages recoverable for these matters, if the defendant was responsible for them, Y. If the action was brought for Y alone, what damages would the jury, if properly directed, have given? If it was brought for X alone, what damages would the jury, if properly directed, have given? If it was brought for both, what damages?Z.
In my opinion the Judge in this case in terms directed the jury that the defendant was “responsible from the beginning for what was done,” i.e., for X + Y, and the jury assessed the damages accordingly at Z = £75. This is given for X and Y. The problem is to find X and Y. Call we assume even that Z = X + Y? That would give, at all events, X + Y = £75. How are we to apportion it? Let us speculate for a moment. The child is arrested by police, brought to the police barrack, kept there for four days, then taken away on what must have seemed to him an enormous journey in custody to Dublin. He thus describes the arrest:”Four policemen hopped out of the ditch, and told me to stand. They asked me my name. I gave it. They then asked me did I know who killed the two policemen. I said I did not. They then put me into the motor, and drove me off to Tipperary Barracks. There were soldiers with the motor cars; they had guns and bayonets. The policemen and a soldier were in the car with me. Before I was arrested, I had never spoken to the police about the murders. On Friday, the 14th, I was put into a motor car, and a coat was put on me. I was taken to Limerick Junction. District Inspector Neylan and two other policemen were with me. I was brought into the station and put into a train, and was taken to Dublin. The same three police were with me to Dublin. At Dublin we got into a motor, and I was taken to the Depot, Phoenix Park.” Is it reasonable to assume that a jury would allow no damages for all this? If the jury were told the defendant was responsible for all this, and he was not responsible for any part of it, can any verdict based on such a direction stand?
The plaintiff finally arrives at the depot. He finds he is kindly treated, probably better fed and lodged than he ever was in his lifea labourer’s son. What is his own account? “The police treated me kindly. The serjeant was with me the whole time. He was very kind to me; I was happy with the serjeant.”One juryman may say, it was the original wrongful arrest that caused all the trouble. They did not know what to do with him when they had taken him. The man in Dublin only took him off their hands, and treated him kindly. The boy was happy there, he was well looked after, and escaped school. It was the man who arrested him that ought to pay the damages. Y ought to be the greater part of the damages. Another may think the period of detention the most important item. If the Judge had said the plaintiff is entitled to damages1, for his arrest; 2, for his detention in Tipperary, four days; 3, for his removal in custody to Dublin; 4, for his detention in Dublin, fifty-two days; put a figure on each and the total ought to be the damages, we may speculate as to how they would have done so, but certainly the most improbable of all speculations is that they would have done it thus:1, 0; 2, 0; 3, 0; 4, £75. Yet it is practically on this basis that Gordon J., the only one of the Judges in the Court below who deals with this question on the basis of the misdirection, supports the judgment for £75. The Lord Chief Justice, strangely enough, does not refer to the question of damages at all, and Gibson J. only deals with it in a way I shall mention later on.
As it is important to show that this question of damages was fully discussed in the Court below, I shall now refer to the judgment of Gordon J., as it contains a clear statement of the argument, and of his own opinion as to the evidence, the direction, and the result. It will be seen that he is clear on the following points: 1, that there was no evidence of any liability of the defendant for anything that occurred prior to the reception of the plaintiff at the depot; and, 2, that the damages were given for the entire transaction from the arrest. Gordon J. treats this part of the case carefully. He says [His Lordship read from the words “Serjeant Sullivan contends,” &c., to the words “detention in Tipperary” (see ante, p. 72), and continued:]. I have stated this at length to show that this question was fully argued in the King’s Bench. Gordon J. then proceeds to deal with the argument thus [His Lordship read from the words, “that it was the taking,” to the words, “when he was brought to the depot,” and continued:]. These are Gordon J.’s conclusions as to the result of the evidence. He then proceeds [His Lordship read from the words, “But assuming all this,” &c., to the words, “the amount of damages found by the jury,” and continued:]. This is, of course, pure speculation. Let us speculate: (A) 4 is 1/14th of 56; £5 7s. is 1/14th of £75. That would take £5 7s. off the judgment, giving nothing for arrest and removal. (B) £1 per day would be £56. £20 for arrest and removal in custody to Dublin would not be extravagant; that is, £76. Of this, £20 and £5 7s. should come off for the matters prior to the detention at the depot. (C) Or, £50 for Dublin and £25 for the rest is very plausible. But nothing for arrest, or removal, or detention in the police barracks is, in my opinion, an impossible speculation. The Judge has not told us what he means by a “material difference.” If the verdict ought only to have been for £70, can it stand? If it might reasonably have been for a less amount than £75, if the jury were told that the defendant was only responsible for Dublin, can it stand?
I shall now read the Judge’s report of what took place at the close of the plaintiff’s case, and at the close of the entire case, and the Registrar’s certificate. [His Lordship referred to the report and certificate (ante, pp. 52, 59), and continued:] The certificate makes no distinction between questions on which a direction was given and those which were left to the jury. Question 4 and the answer, where there was a direction, appear in exactly the same way as the others. Therefore no weight can be placed on the statement: “the following questions were submitted to the jury.”It is equally consistent with the presence or absence of a direction. The questions plainly draw a distinction between “taking”and “detaining.” No. 2 deals only with taking; No. 3 only deals with detaining; Nos. 1 and 5 with the whole case.
It will be seen that the jury agreed as to 2 (B), that “the taking” was for the purpose of interrogation. This was plain from the evidence of District-Inspector Neylan: “I told the boy’s father I would have to take the boy to the barracks to get a complete statement.” But they were unable to agree (3 (B)) as to whether the “detention” was for this purpose. The first question deals both with the taking and detention. I agree with the statement of Gordon J.: “that it was the taking at Greenane was referred to in the question is, I think, evident from the other questions and the Judge’s report of the trial.” In my opinion this is proved by the fact that the Judge expressly declined Mr. Healy’s request to limit the question to the detention by defendant at the depot. Mr. Healy’s question was (a) confined to detention as distinguished from taking, and (b) to the depot. In the Judge’s question, “cause the plaintiff to be taken and detained” was plainly intended to include both what took place in Greenane, Tipperary, and in Dublin. It is immediately followed by separate questions as to taking and as to detention. Mr. Healy had the Judge’s questions before him. He framed a question carefully eliminating “the taking,” and confining “the detention” to the depot. The Judge will not accept it, because”it was implicit in the question put.” This can only mean included in the much wider questions framed by him. All this was prior to the charge. On this alone I should have no doubt that the first question was intended by the Judge, and understood by everyone, to cover the entire transaction. But what took place after the charge puts the matter beyond the sphere of doubt. Fortunately in this case Serjeant Sullivan took down the words of the Judge as if he was preparing a bill of exceptions. Curiously enough, he spoke of his note of objections to the charge as his”dominical,” the old term in such cases, and the Judge received it and quotes it as accurate. It is vital in considering this to note that the Judge does not suggest that these passages do not fairly represent his directions to the jury, or that there was anything in the charge to limit or vary their effect. I first take the Judge’s summary of the case at the beginning of his report:”The boy had, as will be seen by the evidence, given some information to the police. He was taken by District-Inspector Neylan to and brought into the barracks in Tipperary for the purpose of getting a complete statement from him. He was kept there for four days, and then sent up to the depot in the Phoenix Park, where he was kept for about two months.” There was no dispute about any of these facts. I now take the Judge’s direction to the jury on these facts from the report. “Serjeant Sullivan made the following objections to my charge: I respectfully object to the following passages in your Lordship’s charge: ‘You must begin the case with the assumption that if a wrong had been done, Mr. Pearson, the defendant, is responsible. Defendant must be held responsible from the beginning for what has been done. If he was taken and detained, it was Mr. Pearson who took and detained him.'” The report adds these words: “I think I said, ‘you must assume that it was Mr. Pearson who took and detained him.'” This was after the Judge had refused Mr. Healy’s request to limit the question to the detention in Dublin. I must repeat, the Judge does not suggest that there was anything in the charge to modify these directions to the jury. On the contrary, he says “the substance of what Serjeant Sullivan complained of in my charge is correct.” The Judge adds, “but the statements only amounted to a statement of the position in view of the fact that the defendant had not appeared.” This can only mean that the Judge said, “as the defendant has not appeared, the position of the case is this, you must begin the case with the assumption, &c. Defendant must be held responsible from the beginning, &c. If he was taken and detained, you must assume (I take his correction) that it was Pearson who took and detained him.”
I confess I cannot see how this alters the matter. The Judge then says: “Either the defendant must be held responsible for taking or detention, or I should have directed the jury to find for the defendant. I so told the jury, and they completely understood it.” But what does it mean? It can only mean this: “Gentlemen, if the defendant was not responsible for the taking and detention, it would have been my duty to direct a verdict for him. As I have not done so, he must be held responsible.” It only makes the direction more emphatic.
I now come to the judgment of Gibson J. [His Lordship referred to the judgment (ante, p. 67), and continued:] Serjeant Sullivan’s contention in the King’s Bench Division and before us was that question number 1 covered the whole transaction from beginning to end, that “taking” meant what the boy called his arrest. Gibson J. says: “The plaintiff’s counsel answer that the taking only describes the first step, when plaintiff was received into the depot.” That is, that “taking meant his admission to the depot.” This is the only other meaning of taking suggested in the case. Does Gibson J. hold that this is what the questions and the charge were calculated to convey to the jury? It makes nonsense of the distinction between questions 2 and 3, viz., what was the defendant’s belief (a) when the boy was on the door-step (question 2); (b) when he was inside the door (question 3)? As Gordon J. points out, these questions make it evident that it was the original arrest that was referred to.
He next comes to the charge. “The Judge stated his opinion to the jury that the uncontradicted evidence indicated detention by the defendant.” (He omits “taking.”) “Still he left the question to the jury.” This is his entire statement as to the charge and its effect. What is it? This: “In my opinion, you may infer detention by the defendant from the uncontradicted evidence.” I wonder how many times Gibson J. has discussed the question when “may” means “must” or “shall,” but I never before came across a case in which it was suggested that “must”is a permissive term, and means “may.” However, this is the Judge’s (Gibson J.) construction of the words: “If he was taken and detained, it was Mr. Pearson who took and detained him,” paraphrased by the Judge (Pim J.) thus: “I think I said, ‘You must asume that it was Mr. Pearson who took and detained him.'” The word “must” occurs practically in every sentence affecting the charge in the report. It is used four timestwice in Serjeant Sullivan’s dominical, twice by the Judge himself. How does Gibson J. construe “must” in the direction, “you must begin the case with the assumption that if a wrong has been done the defendant is responsible,” and in the direction, “defendant must be held responsible from the beginning”; and in this statement of Pim J.:”Either the defendant must be held responsible for taking or detention, or I should have directed for the defendant”? Pim J. accepts them without paraphrase.
So far we have no indication as to whether Gibson J. thought”taking” meant the original arrest or the reception at the depot. He does not refer further to the vital question whether the jury were told that the defendant was liable in damages (a) for the whole transaction from the beginning, or only (b) for the detention at the depot. He deliberately abstains from giving any opinion on the question; he held it was immaterial, becauseI state this with hesitation, but I can put no other meaning on his judgmentif the jury were told (a) they would either have disregarded the direction and assessed the damages as if they had been told (b), or else, if they did take into account the arrest, detention in Tipperary, and removal, their assessment was arrest, 0; four days, Tipperary, 0; removal, 0: depot detention, £75. The words of the judgment are: “I do not think that damages were assessed in respect of the days before the 14th, or that what happened in Tipperary influenced them.” “I have come to the conclusion that the verdict should not be disturbed, as the supposed alleged misdirection would not have affected the result, and there has been no substantial miscarriage.” Gordon J. only thought it would not materially affect the result. Gibson J. is positive that it would not have affected the result at all. He is certain that a jury would give no damages for arrestfour days in Tipperary and removal to Dublin. I am of opinion that the jury were directed that the defendant was liable for the entire damages X and Y referred to in the beginning of my judgment; that there was no evidence that he was liable for the damages except for the detention at the depot. The action was only brought for this, and the plaintiff’s counsel asked the Judge so to limit the matter. I have endeavoured to show that the speculations of Gordon J. and Gibson J., that the damages would have been the same if the misdirection had not been given, are highly unreasonable on the facts.
I shall now refer to two cases which, in my opinion, establish beyond doubt that the Court is not justified in making any such speculations, and that even if the Court agreed with the speculations, still there must be a new trial. The cases also establish that if the misdirection is capable of inflicting injustice on the party, the Court must not speculate whether this in fact occurred or not. Such a case does not come within Order 39, rule 7.
In the case of Bray v. Ford (1), Ford, the plaintiff, was Vice-Chairman of a College, and acted as solicitor for it. Bray, defendant, was a Governor of the College. Bray published a libel on Ford charging him (X) with making profits illegally and improperly as pa solicitor to the Board, and (Y) making other grave libellous charges against him. At the trial, Cave J. told the jury that Ford was lawfully entitled to these profits. The jury found a verdict for £600. That is, the verdict was for (X) + (Y). The defendant applied to the Court of Appeal for a new trial on the ground of misdirection as to these profits. The case is not reported in that Court. I take the account of it from the judgments in the House of Lords. It is clear that both the Court of Appeal and the House of Lords held that Cave J. had misdirected the jury, and that Ford was not entitled to these profits. Therefore, the plaintiff was not entitled to damages for X. His right to damages for Y was not disputed.
I now take the judgment of Lord Herschell at p. 52: “It is clear, however, that the learned Judge misdirected the jury, and that, as the misdirection cannot be said to have been on a point wholly immaterial, the appellant would have been entitled, prior to the Judicature Act, to a new trial as of right.” This is very important. He continues: “Order 39, rule 6, provides that a new trial shall not be granted on the ground of misdirection, unless, in the opinion of the Court, some substantial wrong or miscarriage has been thereby occasioned in the trial. The Court of Appeal came to the conclusion that there had been no such wrong or miscarriage in the present case. They thought, as I understand, that the nature of the libel was such that the jury would have been entitled to give, and would probably have given, the same verdict, even if the direction of the learned Judge had been the other way. If I had thought that the enactment relied on sanctioned dealing with the case in this way, I am far from saying that I should have differed from the conclusion at which they arrived. But I have come, with some reluctance, I own, to the conclusion that it does not.” Having pointed out that in cases other than those of unliquidated damages, such as libel, the rule may apply, he says: “But the assessment of damages is peculiarly within the province of the jury. The damages cannot be measured by any standard known to the law . . . The latitude is very wide. It would often be impossible to say that the verdict was a wrong one, whether the damages were assessed at £500 or £1,000. Where, then, the Judge so directs the jury as to lead them to take an erroneous view of any material part of the alleged libel, and this view may have affected their minds in considering what damages they should award, I think there has been a substantial miscarriage within the meaning of the rule. The Court may think, as I might think in the case before your Lordships, that the jury would have given the same damages if the law had been correctly expounded; but this is a matter of mere speculation; it cannot be asserted with the least certainty that they would do so. The jury have returned their verdict on what they were erroneously led to think was the case, and not on the real case which the defendant was entitled to have submitted to them.”
I have taken this judgment first, as it contains the account of what occurred in the Court of Appeal. The first judgment was that of Lord Halsbury. It is to the same effect. Having said that there was a misdirection, he says: “What influence such a wrong might have had upon the verdict or upon the amount of damages I am not disposed to consider . . . It is nothing to the purpose to say that the rest of the printed matter complained of as a libel would have justified a verdict to the same amount of damages. I absolutely decline to speculate what might have been the result if the Judge had rightly directed the jury.” Lord Watson, after stating the rule, says: “Every party to a trial by jury has a legal and constitutional right to have the case which he has made . . . fairly submitted to the consideration of that tribunal.” He holds that the misdirection was “a miscarriage”within the meaning of the rule, and says: “The only question, therefore, is whether the miscarriage has been substantial within the meaning of the order.” Having stated the facts, he points out the effect of the misdirection thus: “In the one aspect” (i.e. that of the misdirection), “the appellant’s letter conveyed a wholly baseless and libellous charge; in the other” (i.e. of proper direction), “a well-founded accusation, followed up by language which conveyed other and libellous imputations. I do not feel myself in a position to affirm that in each of these cases the same jury would have awarded the same sum of damages. I could not possibly arrive at that conclusion without first assessing the damages in each case for myself; and that is a duty which, in my opinion, I ought not to undertake in a case like the present. In such a case the assessment of damages does not depend upon any definite legal rule, and is the peculiar function of the jury, by whom the party liable is entitled to have the measure of his pecuniary liability determined.” Lord Macnaghten concurred in this important judgment. Lord Shaw gave judgment to the same effect. This case was decided twenty-five years ago. It has never been questioned. I should have thought it would have put an end to speculations as to what unliquidated damages a jury would have found if a substantial misdirection had been given. With great respect for those who take a different opinion, I think it has done so, and that this Court should follow that decision.
In 1912, in a case of Sandford v. Porter (1), Bray v. Ford (2)was considered and followed in this Court. The case is complicated in its facts; but the head-note states the effect of the case so far as it applies to the present case thus: “That under the circumstances of the case the misdirection was capable of inflicting injustice on B, and that without speculating whether or not this in fact occurred, the case did not come within Order 39, rule 7,” and the judgment must be set aside. The judgment of the Lord Chief Baron in the Court below, at p. 563, of the Master of the Rolls, at pp. 577-8, and of Holmes L.J., at p. 583, fully bear this out. There is, however, a very important matter dealt with in the judgment of the Lord Chief Baron at pp. 561, 562; that is, the effect of sect. 48 of the Irish Judicature Act of 1877, and of sect. 22 of the English Act of 1875. [His Lordship read from pp. 561, 562.] It is very strange that the effect of the section on the rules does not appear to have been discussed in any reported case.

The case of Smith v. Trimble (1), in the House of Lords, was heard before six Law Lords. When I read the section of the Irish Act, it made a considerable impression; but when I cited sect. 22 of the English Act of 1875, it was plain that none of them had ever heard of it before. They sent for the statute. When it was read, Lord Halsbury said, “You have your statute, and are entitled to rely on it.” I then pointed out that the language of Lords Halsbury and Watson (quoted above) in Bray v. Ford (2)practically went the full length of the section.
In my opinion, the view of the Lord Chief Baron is correct, and the defendant in this case is entitled to a new trial as a matter of right. However, Bray v. Ford (2) and Sandford v. Porter (3)establish beyond doubt, in my opinion, that the defendant is equally entitled to a new trial, “assuming” (in the words of the Lord Chief Baron, at p. 563) “that I am wrong as to the effect of sect. 48, and that the rule . . . is a legal rule.” The law is settled that the Court cannot dispose of the matter by reducing the amount of the unliquidated damages.
There is another very simple ground on which I am of opinion that this verdict should not stand. The jury agreed that the taking of the plaintiff was for the purpose of interrogation. This was stated, as I have said, by the District Inspector who took him. They were unable to agree as to whether he was detained for this purpose, and they were unable to agree either as to taking or detection, as to whether the defendant genuinely believed that the plaintiff’s life was in danger. Surely, in such a case the damages would be widely different if they thought there was no belief as to danger, and that the allegation was a pretence, from what they would have been if the jury thought the defendant acted bona fide for the safety of the boy’s life. Jurors differing as to this could not properly agree as to damages. I express no opinion on the other questions in the case.

O’CONNOR L.J. :
I fail to see the slightest defence to this action. The ground relied on to justify the plaintiff’s imprisonment is this: that if he were allowed to be at large, he would be in some danger of death or injury, arising from the violence of persons wishing to cloak the perpetrators of a crime of which the plaintiff knew, or was supposed to know, something. Personally, I do not think there was any real fear of injury to the boy. If he had been allowed to go free, a few minutes’ conversation with his father or relatives or others would have effectually stopped his mouth, unless, indeed, this boy is quite unlike all other boys. That this should be so is, of course, very regrettable, but we must take things as we find them. The notion that to prevent this boy giving evidence wicked people would find it necessary either to shoot or maim him seems to me grotesque.
But even if I thought that there was some change of danger to the boy, or, perhaps, I should say, some evidence of it, that helps the defendant not a whit. You cannot incarcerate a man or a boy merely because his going abroad or his doing something that he is minded to do exposes him to some danger. If that were so, the adventurous spirits that sought the North Pole or the interior of Africa, or that conquered the Atlantic in flight, might have been looked up for their own good. Nor does the fact that the supposed danger arises from the designs of wicked men warrant interference with the wish of him who desires to brave it. If it were otherwise, every informer in Irish history could have been looked up for life. The cases that have been referred to have not the most remote resemblance to this case. If any person, civilian or policeman, sees a breach of the peace about to occur before his eyes, he can then and there take reasonable steps to prevent it. But what connexion that state of facts has with a state of facts in which it is the merest speculation whether a breach of the peace will ever occur, when it will occur, or by whom it will occur, I fail to see.
A point has been raised as to the damages. It is said that the jury gave damages in respect of the entire detention, commencing with the detention in Tipperary; in other words, the damages were for detention from the 10th February, 1919, to the 9th April, 1919, a period of fifty-eight days, instead of from the 14th February, 1919, to the 9th of April, 1919, a period of fifty-four days. The action was brought, as the statement of claim shows, for the period commencing with the 14th February, and for no other period; the action was fought on that basis, and no amendment of the pleadings was suggested or asked for; and it is perfectly clear, to my mind, that the question put by the learned Judge applied to, and was perfectly understood by all partiesJudge, jury, and counselto apply to, the detention in the depot from the 14th February. There is, therefore, nothing in this point, which, apart from the want of merits, is, I think, not open to us, inasmuch as the notice of motion to the King’s Bench Division and the notice of appeal to this Court were altogether silent as to it.
M’Laughlin v. Scott

K. B. Div.

CASE STATED by the Right Hon. Mr. Justice Dodd on the hearing of civil bill appeals at the Summer Assizes for the County Mayo.
The case set out as follows:The civil bill was for damages for trespass to the person and for false imprisonment. The case was tried at Sessions by a jury, and the County Court Judge had given a decree for £25 (pursuant to findings and award of the jury empanelled to try questions of fact).
Mr. Leonard K.C. and Mr. Charles Bewley were counsel for the plaintiff; and Mr. Fetherstonhaugh K.C. was counsel for the defendant.
The boy John M’Laughlin was examined, and deposed:On the 3rd April a policeman came with a message. I was brought into the barrack. I was brought into the day-room. I was kept there night and day. There was no bed. I was given a policeman’s greatcoat. I had an interview with Captain Scott, the District Inspector, the defendant, on the 4th or 5th April. He told me he was going to send me to Castlebar. There is more room there, he said. I did not ask why I was there. I was brought to Castlebar on the 5th to the day-room. Tom O’Connor was brought with me. I was kept till after 9 o’clock. I was not allowed to speak. I was put into a cell at 10 o’clock. We were taken into the day-room. I was kept in Castlebar seven weeks a month without a bed. I got two coats. I did not go to Mass. I asked and was refused. I asked when I would be let go. I asked Head Constable Allen. He told me to prepare for another month. I was taken up to Dublin, and there released.
[The proceedings on the habeas corpus application were referred to, but not put in.]
Michael M’Laughlin, the father, and Thomas O’Connor were also examined. Their evidence was to the same effect, and is not further relevant.
Mr. Fetherstonhaugh said the case for the defendant was that the life of the young man would have been in danger, that he acquiesced, that he was not a prisoner. He referred to Humphries v.Connor (1) and O’Kelly v. Harvey (2). He called Captain Scott, who swore as follows:He said the town was in a state of unrest after the murder of the Resident Magistrate, Mr. Milling, and proceeded:I considered it in the boy’s interest to keep him under police control. The boy made no objection. He made no complaint that he was not well treated. He was provided with all reasonable comfort. I think it would not have been safe to let the boy out except with a police escort. It would not have been safe to have allowed him to go to Mass. [The witness protested that the boy was not “a prisoner,” meaning thereby a person charged with an offence. But he said he would not be allowed out.] The conditions had altered when the habeas corpus proceedings were commenced. I could not let him out without making a report to my superior officer. He was cross-examined, and said”I had other reasons for keeping him, but his safety was my first reason.” Asked why he was put in a cell, he said he was not put in a cell save when there was no constable to protect him.”We were responsible for him.”
To me.”I had as a police officer facts before me which led me and my superior officer to the conclusion that it would not be safe for the boy not to be under police control. I cannot in the discharge of my duty disclose to you the facts upon which this opinion was based. When I said this was not the sole reason, I meant it was the dominating reason. As a police officer I would sooner not say what the other reasons were. The reason for my keeping him safe was that he had been seen going to the police barracks, and being in communication with the police.”
Mr. Leonard then asked was not the message to the boy sent by the defendant. He said it was sent from the police barracks. He accepted responsibility. Asked again why then was it safe to discharge him on the 12th May, he replied that his people were then willing to look after him; they had not said so for a long time.
Constable Allen proved that Westport was declared a military area on the 4th. On cross-examination, he said the facts that called for the proclamation existed upon the 3rd April, and prior thereto, from the date of the murder.
The case in the Court below was tried by a jury, who found that the boy was well treated, and they awarded £25 damages.
Mr. Fetherstonhaugh contended:
1. That the murder of Mr. Milling, R.M., on the 31st March, 1919, being known to the defendant to be the outcome of a dangerous conspiracy in and about Westport, which was in a state of serious disturbance, and was proclaimed a special military district on the 3rd April, and the plaintiff having been known to have gone to the police barracks, and known or believed to have made communications to the police, it would be believed or feared by persons who knew what information the plaintiff could probably give that he had, whether willingly or not, put the police in possession of facts detrimental to the murderers. Therefore there would be danger that plaintiff’s life would be taken before his evidence could be made available, and therefore the defendant as a police officer was justified in taking what he considered necessary measures for the protection of plaintiff by keeping him under guard, first at Westport, and later at Castlebar, more remote from the scene of the murder, and was justified in detaining him till satisfied he was no longer in danger, which happened when he found that plaintiff was regarded with favour because he was detained, and no arrests had followed his communications, and his relatives were satisfied they could safely take charge of him, when plaintiff was at once released from guard.
2. That defendant as a police officer could not reasonably in the public interest disclose all the facts leading him to the conclusion he came to as to detaining the plaintiff, and that the facts disclosed or assumed by both sides to be in the knowledge of the Court were sufficient to justify the defendant.
Mr. Leonard and Mr. Bewley contended:
1. That inasmuch as defendant admitted that it would have been safe to discharge plaintiff on the 12th May, the defence put forward could not in any event justify the plaintiff’s detention after that date up to the date of his release on the 22nd May.

2. There is no authority for any such proposition as that the interference by one person (without statutory authority) with the liberty of another who is not a wrongdoer ceases to constitute an actionable wrong though the former believes, and even proves reasonable grounds for believing, that his acts are in the best interests of the person interfered with.
3. The widest proposition which can be deduced from the cases cited by the defendant is that in certain cases acts prima facie actionable may be justified by proof of (a) reasonable grounds for apprehending an immediate breach of the peace, and (b) that the acts complained of were necessary to prevent same, and (c) that they were no more than was necessary for that purpose.
4. No defence can be relied upon unless the facts which would constitute such defence are proved before the Court.
5. The matters relied upon by the defendant were material only in mitigation of damages, and the jury in the County Court had evidently had regard to them in this respect.
I find as a fact that the boy was detained against his will. The question then arises: Was there evidence on which I could act in support of a justification of the detention? I was much impressed by the bearing and manner of the defendant, as apparently also were the jury in the Court below. I am satisfied he bona fide believed it was his duty as police officer to keep the boy under police control; and having regard to the entire circumstances, I believe also he was within his duty in declining to give me the facts upon which his decision was based. But the question for the Court is: Was there any evidence of justification?
I had prepared this case before the Long Vacation, with a blank for counsel on both sides to insert their contentions. It is now returned to me with the contentions inserted. I make no objection to what has been inserted, but the difficulty I had is not quite met. It was not, as Mr. Fetherstonhaugh suggests, whether there was some evidence. The question is whether there was evidence upon which, according to our law, I could act.
1. Was the plaintiff entitled to be informed of, and were his counsel entitled to examine into, the facts upon which the defendant relied as giving him reasonable grounds to detain the plaintiff?
2. Was the defendant, us an officer of the police, who was prevented by the Crown, and by his own sense of public duty, from telling the full facts, entitled to a decision from me in his favour if I gave credence, as I did, to his statement that at a time of crisis and danger he in good faith did what he did to preserve the life of the boy?
As to Mr. Leonard’s and Mr. Bewley’s contention with reference to the continuance of the detention, I did not reserve any question. If the original detention was unlawful, the defendant is answerable. If it was not, he is not answerable. I had no facts before me as to who was in charge of the boy, nor any evidence as to when he might have been set at liberty.
The case is the converse of M’Elveney v. Connellan (1). The plaintiff there was non-suited, because the Crown would not produce the document necessary to support the plaintiff’s case. Was the defendant’s plea of justification here to be decided against him because the Crown would not permit him to give the facts on which his defence rested? I was entitled to draw inferences from such facts as were proved, but could they take the place of affirmative evidence? I think I ought to frame and answer questions, as if there were a jury, so as to put the Court in a position to decide the grave constitutional question that seems to me to be involved, and to answer them. I say “the Crown,”because it was not disputed that the defendant in withholding the evidence was acting under instructions. I did not require the Attorney-General to appear and claim the privilege. I find therefore
1. There was unrest in Westport, following upon the murder of the Resident Magistrate in the town of Westport.
2. Such unrest was likely to create feelings of animosity to anyone believed to be in communication with the police as to the crime, to such an extent as to give reasonable apprehension of danger to his life.
3. The plaintiff was believed to be in communication with the police.
4. The defendant believed the boy’s life was in danger, and acted in good faith.
5. There were reasonable grounds for such belief.

The questions I submit are:
1. On the facts proved before me, was there evidence to support all or any of these findings?
2. Do these findings, or such of them as the Court may support, amount to a justification of the detention good in law?
If question 2 is answered in the affirmative, the decree is to be reversed, with costs. If not, the decree for £25 is to be affirmed, with costs and expenses.
Leonard K.C. and Bewley , for the plaintiff.
Fetherstonhaugh K.C. , Wylie K.C. , and Holmes , for the defendant.
Cur. adv. vult.

MOLONY C.J. :

This is a case stated by Mr. Justice Dodd, from the Summer Assizes for the County of Mayo. The civil bill was brought by John M’Laughlin, who is a minor, by Michael M’Laughlin, his father and next friend, against Victor Scott, D.I., R.I.C., claiming damages for trespass to the person and false imprisonment. The case was tried before the County Court Judge and a jury, and the jury found for the plaintiff, assessing damages at £25.
The defendant appealed, and upon the hearing of the appeal the present case was stated.
The facts of the case are somewhat similar to the facts in the case of Connors v. Pearson (1), and the principles of law involved are the same in both cases. It appears that the plaintiff, in consequence of a message, went to the police barrack at Westport on the 3rd of April, and he was kept in custody until the 12th of May, first in Westport, and afterwards in Castlebar.
The learned Judge has found the following facts:[His Lordship read the findings.]
And upon these findings the learned Judge submits two questions, namely:
1. On the facts proved before me, was there evidence to support all or any of the findings? and
2. Do these findings, or such of them as the Court may support, amount to a justification of the detention good in law?

There was evidence to support the first finding, as the fact was sworn to positively by the defendant. There was no satisfactory evidence that I can find to support the second finding: The defendant said it was in the boy’s interest to keep him under police control, and that it would not have been safe to let him out except with a police escort; but this evidence is not, in my opinion, sufficient to support the second finding. As regards the third finding, the defendant swore that the reason for keeping the plaintiff was that he had been seen going to the police barrack and being in communication with the police, but there is no evidence whatever that he had in fact been seen. As regards the fourth and fifth findings, the defendant said that on the facts before him he had come to the conclusion that it would not be safe for the boy not to be under police control, but there is no evidence that he believed the boy’s life was in danger, or that there were reasonable grounds for such belief.
It appears to me therefore that while there was evidence to support one of the findings, it was not sufficient to justify the defendant in detaining the plaintiff, and consequently I think that the second question should be answered in the negative, and that the defendant should pay the costs of the case stated, to be taxed within the limit prescribed by the rules.

GIBSON J. :
The decision in Connors v. Pearson (1) rules this case, where the evidence is much weaker. The plaintiff made no statement to the police, and the main reason for forcibly detaining him was that, having been sent for and brought to the barracks, it would not have been safe for the plaintiff not to be under police protection. The feelings excited by Mr. Milling’s murder may have warranted reasonable grounds of apprehension of criminal attacks on anyone in communication with the officers of law, but belief on reasonable grounds of future danger does not justify arrest, still less imprisonment. The successful demurrers in O’Kelly v. Harvey (2)decide this, if authority was wanting. Neither the Judge’s conclusions of fact nor the evidence afford any legal answer to the action.

GORDON J. :I concur.
H. J. M’C.

Fetherstonhaugh K.C. , W. S. Wylie K.C. , and Hugh Holmes ,for the appellant (Scott):
The plaintiff was in danger, and the defendant was entitled to arrest and detain him in order to protect him from that danger, and thereby preserve the peace. FitzGibbon L.J., in Coyne v.Tweedy (1), said: “It is too late, at least in Ireland, to question the power of a constable, as a reasonable exercise of his duty to preserve the peace, to put a person into a safe place who is not himself a wrongdoer, but who, if not removed, will become the subject of a breach of the peace.” Hayes J., in Humphries v.Connor (2), the “orange lily case,” in dealing with the duty of a constable, said that “he is not only at liberty but is bound to see that the peace be preserved,” and that “he is to do everything that is necessary for that purpose, neither more nor less.” This passage was cited with approval by Sir P. O’Brien C.J. in Coyne v. Tweedy (1), who added: “The measure, then, of the defendant’s duty is doing what was, and what he believed to be, reasonably necessary for the preservation of the peace.”O’Connor L.J. referred to Timothy v. Simpson (3).
In O’Kelly v. Harvey (4) it was held that is is the paramount duty of a magistrate to preserve the peace unbroken by any means available for the purpose.
Leonard K.C. (Bewley with him), for the respondent:
The appellant may have bona fide believed that the plaintiff was in danger, but that is immaterial if, as we contend, there was no legal justification for the detention of the plaintiff: Sinclair v.Broughton (5). The cases cited on behalf of the appellant do not establish any such far-reaching proposition as that an innocent person may be arrested and kept in detention for weeks against his will, solely on the ground that the police are apprehensive concerning his safety. This is subversive of the 29th Article of Magna Charta. The plaintiff has fully discharged the onus of proof laid on him by proving his imprisonment, while the defendant has wholly failed to discharge the onus of proof laid on him, namely, the proof of facts justifying the arrest. There was no evidence adduced that the plaintiff was in any way connected with the murder, or that he had made any statement to the police, and it is the merest speculation that he was ever in danger.

O’CONNOR M.R. :
This is an appeal from an order of the King’s Bench Division, deciding in effect that on the facts proved there was no defence to a proceeding brought by civil bill for illegal arrest and false imprisonment. The plaintiff in the civil bill is a boy named John M’Laughlin, an infant, suing by his next friend. The defendant is Victor Henry Scott, a District Inspector of the R.I.C. The plaintiff lives in the town of Westport, and on the 3rd of April, 1919, he was brought by police to the barracks and detained there for some time, and afterwards at Castlebar and Dublin, until he was released. The boy had committed no crime, and the only justification put forward for his detention was that if he were allowed to go at large his life would be in danger, because he had been seen going to the police barrack and communicating with the police.
This is certainly a novel defence. I believe there is no precedent for it. It amounts to this: that any member of the community may be arrested and detained in prison because it is believed by a peace officer that his life is in danger. The consequences of such a doctrine are rather startling. Take the case of a jury bringing in a verdict of guilty. It is believed by the police, and possibly with good reason, that their lives are in danger in consequence of the odium incurred among a disaffected part of the populace, and the jurymen are accordingly arrested. There is no essential difference between such a case and that which is before us.
The only authorities cited in support of the defence put forward were O’Kelly v. Harvey (1), Humphries v. Connor (2),and Coyne v. Tweedy (3); but in each of these cases the arrest was justified by the danger of an imminent breach of the peace. None of these cases is an authority for the proposition, essential for the defence in the present case, that a belief that the danger of a breach of the peace against the person at some future and indefinite time is a legal justification for the arrest and detention of that person, no matter how laudable the motive of the person effecting it. In my opinion the appeal should be dismissed.

RONAN L.J. :
In this case I delivered a very long written judgment dealing minutely with the special facts of the case and the statements in the case stated. I arrived at the conclusion that, if I had to decide the case, I should have remitted it to Dodd J. for further information and explanation.
So far as the question whether the evidence was sufficient to support the findings, it seemed to me that the case of MacCormack v.Courtney (1) was an express decision that on a case stated under 27 & 28 Vict. c. 99, by a Judge of Assize, the Court has no power to give an opinion as to this. I carefully examined the case of MacCormack v. Courtney (1) and the statutes, and came to the conclusion that we should not overrule the unanimous judgment of four Judges without hearing the question argued. I expressed no opinion as to whether the judgment was right. I only found the case after the argument. It will be seen that the Order of the King’s Bench Division in the present case is carefully confined to this: that there was no evidence to support any of the findings but the first, and that this did not amount to a justification. I examined the case stated minutely, and I came to the conclusion that the real substantial ground of the decision was rested on the facts which, in the words of Mr. Fetherstonhaugh’s argument,”were assumed by both sides to be in the knowledge of the Court.”It seemed to me obvious that we should have some information from the Judge as to what these facts were. It was a civil action, and it seemed to me from the case stated that the strict law of evidence was not insisted on, and that the case proceeded on the basis of the Judge’s special knowledge of the facts and circumstances not appearing on the case stated (1).