OAS Powers & Evidence

Cases

The People v Quilligan and O’Reilly (No. 3)

[1993] 2 IR 305
Finlay C.J.

These two appeals were brought by the two accused against convictions entered against them by the Central Criminal Court on two charges of burglary.
The offences out of which the charges arose were alleged to have been committed by the two accused jointly; the trials were had jointly and the appeals have been heard together.
During the course of the appeals a submission was made on behalf of each of the appellants that s. 30 of the Offences Against the State Act, 1939, was invalid having regard to the provisions of the Constitution of Ireland, 1937.
The relevance of that issue was that the evidence established that each of the appellants had been arrested pursuant to the powers vested in the Garda Siochana by s. 30 of the Act of 1939 and had subsequently been detained for twenty-four and, eventually, for forty-eight hours pursuant to the provisions of that section.
This judgment deals only with the question as to whether s. 30 of the Act of 1939 has been established to the satisfaction of the Court to be invalid having regard to the provisions of the Constitution.
The impugned section
“30 (1) A member of the Garda Siochana (if he is not in uniform, on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of 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 or whom he suspects of carrying a document relating 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.
(2) Any member of the Garda Siochana (if he is not in uniform on production of his identification card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.
(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Garda Siochana station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Garda Siochana not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours.
(4) 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 Garda Siochana, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section.

(5) A member of the Garda Siochana may do all or any of the following things in respect of a person detained under this section, that is to say:
(a) demand of such person his name and address;
(b) search such person or cause him to be searched;
(c) photograph such person or cause him to be photographed;
(d) take, or cause to be taken, the fingerprints of such person.
(6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Garda Siochana of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.”
The appellants’ challenge
The constitutional validity of the section was challenged on three separate grounds, and they are:
(a) That it was in breach of Article 40, s. 1 of the Constitution which provides that all citizens shall as human persons be held equal before the law. The submission under this heading was to the effect that the right of a person arrested on suspicion of having committed an offence which was not an offence under the Act of 1939 or for the time being a scheduled offence for the purposes of Part V of that Act, had as his right to be brought before a court and charged with such offence as soon as practicable, or to be released. On the other hand, it was submitted, a person who was suspected of having committed an offence under the Act of 1939 or scheduled for the purposes of that Act, could on arrest be detained in custody for twenty-four hours and, upon certification by a Chief Superintendent, for a further twenty-four hours. Such disparity, it was submitted, was an invidious discrimination in breach of Article 40, section 1 of the Constitution.
(b) It was submitted that the personal right of liberty guaranteed by the Constitution was insufficiently respected and defended by a law which permitted a person suspected of having committed an offence under the Act of 1939, or a scheduled offence, to be detained for twenty-four or forty-eight hours and that this rendered the section invalid having regard to the provisions of Article 40, ss. 3 and 4 of the Constitution.
(c) It was submitted that the right to silence or the right of protection against self-incrimination was an unenumerated personal right attracting the protection of Article 40 of the Constitution, and that the possibility, pursuant to s. 30 of the Act of 1939, for a person arrested on suspicion of the commission of an offence under the Act or scheduled within it being subjected over a period of twenty-four or forty-eight hours to interrogation by members of the Garda Siochana was an invasion of such unenumerated right, rendering the section inconsistent, for that reason, with Article 40 of the Constitution.
With regard to the submission set out at (b) above, reliance was placed on the fact that upon the hearing of the reference of the Emergency Powers Bill, 1976, to this Court pursuant to Article 26 of the Constitution, the Attorney General in supporting the constitutional validity of the Bill placed reliance on the resolution adopted by each House of the Oireachtas on the 1st September, 1976, pursuant to Article 28, s. 3, sub-s. 3 of the Constitution, and to the provisions of that sub-section which then became applicable to the Bill.
The decision
On an appeal brought before this Court by the Director of Public Prosecutions against the acquittal of the two appellants in this appeal in a former trial in the Central Criminal Court on a charge of murder arising out of the events which form the subject matter of the charges of burglary with which this instant appeal is concerned, this Court dealt with a ruling which had been made by the learned trial judge in that case to the effect that Part V of the Act of 1939 was intended to deal only with crimes of a subversive nature, and that as no subversive element had been shown to exist in the crime imputed to the accused, their arrest and detention under s. 30 of the Act of 1939 had been illegal. That ruling on the hearing of that charge resulted in an acquittal of the present appellants by direction of the trial judge. The Supreme Court in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495 held that, where an offence is declared by order under the Act of 1939 to be a scheduled offence for the purposes of that Act, the provisions of s. 30 of the Act become applicable in relation to such offence and the police powers conferred by that section become exercisable against any personbona fide suspected of being involved in the commission of such offence, whether such suspected offence is or is not believed to have been political or subversive in its motive. In the course of his judgment, with which Hederman and McCarthy JJ. agreed, Walsh J. dealt extensively with the powers conferred by s. 30 and with the restrictions which were applicable to the exercise of those powers.
The Court is satisfied that this examination of the characteristics and powers contained in s. 30 is correct and is clearly material to the issues raised in this appeal.
Having dealt with the various powers contained in the six sub-sections of s. 30, Walsh J., at p. 507, stated as follows:
“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 . . .
No exercise of the powers conferred by s. 30 in relation to any person can be justified solely by the desire to interrogate that person. Sub-section 5 of s. 30 makes specific provision for interrogating persons detained under s. 30 and it is the only provision of the Offences Against the State Act, 1939, giving the right to ask particular questions conferred on members of the Garda Siochana when Part V is not in force.”
The learned judge then continued to deal with the provisions of s. 52 and the situation which arose when Part V of the Act of 1939 was in force.
The powers contained in s. 52 were not invoked at any stage in the instant case before this Court and no challenge or query to the constitutional validity of that section has been made.
Walsh J. then continued as follows at page 508:
“Apart from those particular provisions in ss. 30 and 52, the Act of 1939 does not place any obligation on any person to answer any question, and any person detained or arrested by virtue of those sections would not, subject to the possibility of committing the offence of creating a public nuisance, or of misprision, be committing any criminal offence if the account he gives of his movements or the information he gave in regard to the commission or intended commission of the criminal offence were false or misleading. (See The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336, at p. 356 of the report, a decision approved by this Court in The People (Director of Public Prosecutions) v. Kelly (No. 2) [1983] I.R. 1 at p. 23 of the report). But as the latter case pointed out, whilst ss. 30 and 52 respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in the cases of arrest for ‘ordinary’ offences, may be asked any other question by members of the Garda Siochana present, but he is under no obligation to answer any of them, and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all persons detained under s. 30 and, as described by this Court in its judgment in In re The Emergency Powers Bill, 1976 [1977] I.R. 159, at p. 173 of the report, such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts. These specified rights were not intended by the Court nor expressed to be an exhaustive list but if s. 30 were used in breach of such rights, the High Court might grant an order for release under the provisions of Article 40 of the Constitution . . .
When a person is arrested under s. 30 as in any other arrest he must be informed of which of the many possible offences he is suspected unless he already has that information. (See The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294) . . .
During his detention, in addition to the rights already set out, he must not be subject to any form of questioning which the courts would regard as unfair or oppressive either by reason of its nature, the manner in which it is conducted, its duration or the time of day, or of its persistence into the point of harassment where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned. A fortiori this applies to cases where the initial detention period of twenty-four hours is extended to forty-eight hours by virtue of the provisions of s. 30, sub-s. 3 of the Act of 1939, bearing in mind that the officer, not below the ran of Chief Superintendent, who may authorise the extension of the detention must also entertain the necessary suspicions . . .
I have dealt in some detail with the powers given by ss. 30 and 52, because it appears from the learned trial judge’s reference to s. 30 as providing the Garda Siochana with ‘patently draconian powers’ and giving them the right to ‘compulsorily interrogate a person suspected of crime’ that he felt that ss. 30 and 52 gave to members of the Garda Siochana carte-blanche both as to the manner, nature and duration of the interrogation of persons so arrested. I hope I have succeeded in showing that such is not the case, and that any mistaken beliefs to the contrary, wherever they reside, will be dissipated. The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. Section 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.”
Accepting as it does the validity of these statements concerning the powers conferred by s. 30 and the rights and protections of a person detained pursuant to arrest under that section, the Court has come to the following conclusions with regard to the submissions challenging the constitutional validity of the section which have been made in this case.
The Court is not satisfied that the provisions of this section are any breach of the obligation that all citizens should be held equal before the law, or that they could possibly come within the category of invidious discrimination which would make them constitutionally flawed. Every person who is suspected of the commission of an offence under the Act of 1939 or an offence scheduled for the purposes of that Act is subject in law to the same rights and obligations and to the possibility of detention for the same period or periods. Similarly, every person arrested on suspicion of the commission of a criminal offence which is not an offence against the Act of 1939 and is not scheduled for the purposes of that Act, is subject to the same powers of detention on the part of the Garda Siochana and to the same rights, though such powers of detention and rights are different from those applicable to persons arrested under section 30.
The mere fact that a law discriminates as between one group or category of persons and another does not, or itself, render it constitutionally invalid. What is necessary to establish such invalidity is the existence of invidious discrimination, and the court is satisfied that that has not been established with regard to s. 30 of the Act of 1939 in this case. This ground of challenge must, therefore, fail.
The mere fact that the provisions of the Emergency Powers Bill, 1976, on the reference of it to this Court, were defended on the basis of the provisions of Article 28 of the Constitution, does not appear to this Court to lead to any particular conclusion of a comparison between the provisions of that Bill and s. 30 of the Offences Against the State Act, 1939. The Bill of 1976 specifically referred in its title to the resolution adopted by each House of the Oireachtas on the 1st September, 1976, pursuant to Article 28, s. 3, sub-s. 3 of the Constitution. As such, it necessarily fell to be considered by this Court on such reference, having regard to the provisions of that Article of the Constitution. From that fact, the Court is not satisfied that any inference can be drawn as to the constitutional validity of a section empowering detention on suspicion of the commission of an offence for a lesser period than the seven days, namely, for twenty-four, extendable to forty-eight, hours.
Where a person has been arrested pursuant to s. 30 of the Act of 1939 he has got, in the view of this Court, the following protections.
1. If the arresting garda does not have a bona fide suspicion based on reason of one or other of the matters provided for in the section the arrest is unlawful and he may be released by an order pursuant to Article 40 of the Constitution – The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550.
2. At the time of the arrest the suspect must be informed, if he does not already know, of the offence pursuant to the Act of 1939 or scheduled for its purposes, of which he is suspected, otherwise his arrest will be unlawful – The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294.
3. The person detained has, during his detention, a right to legal assistance, and the refusal to grant it to him when reasonably requested can make his detention unlawful – In re The Emergency Powers Bill, 1976 [1977] I.R. 159, and Director of Public Prosecutions v. Healy [1990] I.L.R.M. 313.

4. The right to medical assistance – In re The Emergency Powers Bill, 1976 [1977] I.R. 159.
5. The right to access to the courts – In re The Emergency Powers Bill, 1976 [1977] I.R. 159.
6. The right to remain silent and the associated right to be told of that right – The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495.
7. The Judges’ Rules with their provisions in regard to the giving of cautions and the abstention from cross-examination of a prisoner apply to a person in detention under s. 30 – The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495.
8. A person detained under s. 30 must not, in the words of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495, “be subject to any form of questioning which the courts would regard as unfair or oppressive, either by reason of its nature, the manner in which it is conducted, its duration or the time of day or of its persistence into the point of harassment, where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned”.
9. If the detention of a person arrested under s. 30 is extended by a Chief Superintendent for a further period after the first period of twenty-four hours, he must entertain also the necessarybona fide suspicion of the suspect that justified his original arrest and must be satisfied that his further detention is necessary for the purposes provided for in the section – The People (Director of Public Prosecutions) v. Eccles , McPhillips and McShane (1986) 3 Frewen 36.
The Court having considered all these protections, any of which can be made effective either by, where appropriate, the release of the person detained from his detention, pursuant to an order made under Article 40 of the Constitution or can be given effect to by the exclusion of evidence obtained in violation of any of these rules applicable to detention under s. 30, is satisfied that having regard to the purposes of the section as outlined in the judgment of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495, to which reference has already been made, that s. 30 has not been established as constituting a failure by the State as far as practicable by its laws to defend and vindicate the personal right of immediate liberty of the citizen.

With regard to the third submission no detailed submission of any description was put before the Court as to the reasons why the Court should conclude that a right of silence or a right to be protected against self-incrimination was an unenumerated personal right deriving protection from Article 40 of the Constitution. No decision of the High Court or of this Court was referred to by counsel on behalf of the appellants indicating the existence of such a right as a constitutional right, unenumerated or not specified.
The Court is not satisfied, having regard, in particular, to the various protections of the right of silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s. 30, sub-s. 5 available to a member of the Garda Siochana in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise; constitutes an invasion of or failure to protect the right of silence of a citizen. On that basis the Court is satisfied that the challenge under this heading must fail. The Court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution.
The Court is therefore not satisfied that for any of the reasons put forward on behalf of the appellants in this case, s. 30 of the Offences Against the State Act, 1939, is invalid having regard to the Constitution.
The following judgments were delivered in relation to the non constitutional grounds of appeal.

Finlay C.J.
In this appeal from the conviction of each of the appellants on a charge of burglary in the Central Criminal Court, on the 17th November, 1989, each of the appellants raised a challenge to the constitutional validity of s. 30 of the Offences Against the State Act, 1939, pursuant to which they were each arrested in respect of a suspicion of having committed the crime of malicious damage and were subsequently charged with the offences of murder and burglary. The decision of the Court on that challenge has just been pronounced, pursuant to Article 34 of the Constitution. It is necessary, however, for the members of the Court to determine the other issues raised in the notices of appeal filed on behalf of the appellants.
Appeal of Patrick O’Reilly
The appeal on behalf of Patrick O’Reilly was first submitted to this Court prior to the submission of the appeal on behalf of Christopher Quilligan, and I will accordingly deal with Mr. O’Reilly’s appeal first.
Ground 1
“That the learned trial judge erred in law in holding that the prosecution of the charge on the indictment was not unfair, having regard to the effluxion of time or to the changed circumstances of the appellant”.
The facts relevant to this submission are as follows. The two accused were originally put forward for trial in the Central Criminal Court on an indictment containing two counts against each of them, arising out the same set of circumstances. One was a count of murder and the other was a count of burglary, the murder being alleged to have occurred in the course of the burglary. On a trial in that court in December, 1985, the Director of Public Prosecutions without any opposition from either of the accused sought a separation of the two counts on the indictment, and put forward the accused on the charge of murder only, obtaining an adjournment of the charge of burglary. That case was determined by Barr J. in the Central Criminal Court in December, 1985, and, having ruled as a matter of law that the arrest of the accused pursuant to s. 30 of the Offences Against the State Act, 1939, was unlawful because the offence of which they were suspected, namely, an offence of malicious damage, was not a terrorist type offence, and there being no evidence against the accused sufficient to warrant a conviction other than the statements made by them while under such arrest, he directed the jury to find each of the accused not guilty of the charge of murder. Against that decision the Director of Public Prosecutions appealed to the Supreme Court, and on the 25th July, 1986, this Court decided that the learned trial judge’s ruling had been in error, and set aside the decision of the Central Criminal Court acquitting each of the accused on the charge of murder. The Court did not on that occasion make any decision or order in relation to a re-trial.
The Director of Public Prosecutions subsequently issued a motion to the Supreme Court seeking an order directing the re-trial of each of the accused on the charge of murder in the Central Criminal Court. That motion was brought in December, 1986, and was eventually disposed of by the Supreme Court by judgment delivered on the 29th July, 1988, in which the Court declined to make any order directing a re-trial of the accused on the charge of murder.
The two accused were then put forward for trial in the Central Criminal Court on the charge of burglary only and an adjournment of that trial was applied for early in the spring of 1989 and was granted, and eventually the trial came on in October, 1989, before the Central Criminal Court (Costello J. and a jury).
The only grounds on which this appellant submitted that it was unfair to reject an application made on his behalf prior to the commencement of that trial that the efflux of time made a trial unfair was that he had altered circumstances in the sense that, since the original trial in 1985, the consequent acquittal and the reversal of that by the Supreme Court he had been on bail and had got married and had a child.
He did not suggest that his capacity to defend the case was in any way prejudiced, other than the mere assertion that time made it more difficult to remember the sequence of events.
I am quite satisfied that an alteration in the circumstances of the accused and the responsibilities which he had taken on, whilst it might be quite relevant as a factor in the assessment of an appropriate sentence, could not possibly be a ground for not prosecuting him and trying him on as serious a charge as this burglary was, even after the efflux of the amount of time involved. There can be no real suggestion, nor was one made, that the Director of Public Prosecutions was at fault, causing the delay which had occurred. I would, therefore, reject this ground of appeal.
Ground 2
“That the learned trial judge erred in law in holding that the separation of the two counts of the indictment by the respondent in December, 1985, was not unfair and no bar to the respondent to proceed with the trial of the remaining count on the indictment.”
No opposition to this separation of the two counts on the indictment was made on behalf of this appellant in December, 1985. There are strong grounds of policy to be found in a number of decisions in favour of not trying with a charge of murder a count of other crimes arising out of the same transaction, even though that is not an inflexible or mandatory prohibition. No grounds have been advanced which in my view would suggest that the decision to separate the counts on that occasion was in any way unfair to the appellant. I would reject this ground of appeal.
Ground 3
“That the learned trial judge erred in law in holding that the Central Criminal Court had jurisdiction to hear and determine the remaining charge on the indictment.”
This submission was not advanced, and it was accepted on behalf of the appellant that having regard to the decisions applicable there was jurisdiction to proceed.
Ground 4
“That the learned trial judge erred in law in holding that the appellant was not entitled to plead in bar autrefois acquit.”
This ground was submitted upon the basis that even though it had subsequently been set aside and discharged by the Supreme Court order of the 25th July, 1986, the verdict of the jury in December, 1985, was a previous acquittal.
I am satisfied that there are no grounds for this submission in law. It is fundamental to the concept of a plea in bar of autrefois acquit orautrefois convict that there is a subsisting valid acquittal or conviction of the precise charge available. This appellant was never tried on the charge of burglary before the trial which was had in October, 1989, in the Central Criminal Court, and furthermore, at the time he was put forward for trial on that charge at that time, even if it had been the same offence as was tried in December, 1985, the purported acquittal which had been reached in error by the court in December, 1985, in the view of the Supreme Court, had been set aside and discharged. This ground must also fail.

Ground 5
“That the learned trial judge erred in law and in fact in holding that the alleged admissions by the appellant were admissible in evidence.”
Ground 8
“That the learned trial judge’s determination of the trial within the trial on the issue as to the admissibility of the alleged admissions was against the evidence and the weight of the evidence.”
Ground 9
“That the learned trial judge erred in law and in fact in holding that the circumstances of the interrogation given by witnesses for the respondent did not have the effect of undermining the unenumerated right against self-incrimination.”
All these three grounds were dealt with together and a review was placed before this Court on appeal of the evidence given by the interrogating Garda Siochana with regard to the interrogation of the accused. On the trial within the trial referred to in these grounds, this accused gave evidence.
The learned trial judge in making the ruling clearly accepted the truth of the evidence given by the members of the Garda Siochana who had conducted the interrogation of the accused and rejected the evidence of the accused where that was in conflict with the evidence of the Garda Siochana. In substance, the accused’s evidence was to the effect, both that he had been subjected to threats, to coercive and harassing behaviour, and to physical harassment without actual assault, and that a substantial part of the incriminatory statements purported to have been made by him were not made by him at all, but were simply dictated by the gardaí, written down, and that he was forced or cajoled into signing the document so produced.
In my view, the learned trial judge was entitled to make an assessment which must necessarily depend on the credibility of the witnesses concerned as to the conflict of evidence that arose with regard to the admission of these statements. Once he concluded that the account given by the investigating garda was one which he could accept as being true beyond a reasonable doubt, he was entitled, on the terms of the evidence given by those members of the Garda Siochana, to admit the statements into evidence, and this submission must, in my view, fail.

Ground 7
“That the learned trial judge erred in law in holding that the doctrine of res judicata and/or issue estoppel did not apply to the issue of the admissibility of the alleged admissions made by the appellant.”
What was here being contended on behalf of the appellant was that because the Central Criminal Court (Barr J.) on the hearing of the charge of murder in December, 1985, held that by reason of an invalidity in the arrest and detention of the appellant which the learned judge held as a matter of law flowed from the fact that he was not being suspected of a terrorist offence, that even though that decision, which was purely a question of law, was overruled and set aside on appeal to the Supreme Court, that it constituted an issue estoppel or res judicata between the State and the appellant in regard to the admissibility of these statements which was available to the appellant in a charge on a different count of the indictment arising out of the same set of circumstances.
I am satisfied that such a proposition is wholly unsound and must be rejected. In order for there to arise an issue estoppel in any case, and I express no considered view on the special position it may have in criminal cases, it would be essential that there should be a valid and final decision of the particular issue between the parties. Where, however, a decision reached on a particular issue has been set aside on appeal it can no longer be considered a final or valid decision and cannot be availed of in subsequent proceedings by either of the parties concerned. This ground must also fail.
The further substantial ground put forward by this appellant was that contained at No. 11 of the grounds of appeal, which is as follows:
“That the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.”
Counsel on behalf of this appellant in making his submissions pursuant to this ground, in short, urged that where the only evidence implicating an accused person in the commission of a crime constituted admissions or inculpatory statements made by him whilst under what could be described as sustained interrogation in police custody, that the experience of the courts should make it a rule of practice similar to that laid down by the Supreme Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, relating to evidence of visual identification, that a judge should warn a jury that, whilst they were entitled to do it, that it should be ordinarily considered unsafe to convict on the uncorroborated evidence of the existence of such admissions. The judgment of Kingsmill Moore J. in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, not only laid down the special position with regard to evidence of visual identification but also laid down principles which are of general application in respect of the necessity or desirability of corroboration in criminal cases. At p. 37 he stated as follows:
“It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case, and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestability and lack of responsibility of children of tender years may find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries they should not convict unless they have weighed the evidence with the most extreme care. Similarly, the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it.”
In that judgment the learned trial judge, of course, went on in fact to extend it to the questions of visual identification.
I am satisfied that the broad principles laid out in this portion of the judgment in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 are correct but are capable of being expanded or clarified by a consideration of the category of cases in which judicial experience had by that time at least made it desirable that warnings concerning corroboration should be given. Sir James Stephen, in The General View of the Criminal Law, at p. 249, dealing not specifically with corroboration but with the allied topic of the situation in which juries may well acquit, even though uncontradicted sworn evidence of one witness imputes guilt, stated as follows:
“The circumstances may be such that there is no check on the witness and no power to obtain any further evidence on the subject. Under these circumstances, juries may and often do acquit. They may very reasonably say we do not attach such credit to the oath of a single person of whom we know nothing, as to be willing to destroy another person on the strength of it. This case arises where the fact deposed to is a passing occurrence – such as a verbal confession or a sexual crime – leaving no trace behind it except in the memory of an eye or ear witness.”
Lord Hailsham of St. Marylebone, L.C., in the judgment in Director of Public Prosecutions v. Kilbourne [1973] A.C. 729 in the course of his judgment suggests that the judge-made rule of the desirability of warning against convicting on the evidence of a witness without corroboration in a criminal case should extend to “the evidence of any principal witness for the Crown, where the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence.”
It is of importance that what is arising in the instant case is not a case of verbal admissions only, which in the words of Sir James Stephen leave no mark other than in the ear of the witness present; there are in this case two signed statements of admission which the jury could see and observe and in which the accused did not dispute his signature. Secondly, I do not think it can be said, even as a broad category, that there could be any assumption that a member of the Garda Siochana investigating the commission of crime has, in the words of Lord Hailsham, some purpose of his own in making a false statement against an accused.
Having considered these various statements of principle concerning the necessity for giving warnings about corroboration in criminal cases when charging the jury, I conclude that the broad assertion made by the appellant in this case that the fact that the evidence against him which is, undoubtedly, uncorroborated, was statements of admission made by him after sustained interrogation whilst in police custody, made the giving of a warning to the jury, against the danger of convicting without corroborative evidence of the facts set out in those admissions, necessary, is not a sound proposition of law.
I am aware that there have been cases in which an appellate court has found inculpatory statements made by persons under sustained interrogation whilst in garda custody, where they were not corroborated by other evidence incriminating the accused, to be unsafe as a basis for conviction. I am also aware of the public unrest necessarily arising from such decisions, and indeed, the concern which, for lawyers and lay persons alike, the concept of sustained interrogation in garda custody creates.
It does not seem to me, however, that the problems thus arising are amenable, as a matter of principle, to a general requirement for judicial warning in every such case against the dangers of convicting on foot of the evidence contained in such inculpatory statements, where it is not corroborated.
The possibility of such a warning in any given or particular case as being appropriate is, of course, clearly open. In his discretion, a trial judge may well, in the exercise of his jurisdiction to consider the validity of such alleged confessions or admissions as evidence, exercise an even more fundamental protection against a wrongful conviction arising from such confessions, and often does, by excluding them from the consideration of the jury.
It seems to me, however, that the necessary flexibility of the charge of a trial judge to a jury in a criminal case, required for the attainment of justice, must permit of a wide discretion, having regard to the particular facts of each individual case. Thus, for example, it would appear to me quite appropriate that in a case where verbal admissions, only, are being relied on that a judge should specifically direct and warn a jury as to the difference in quality and, possibly, in persuasiveness of such admissions in general, as compared to written admissions signed by an accused person.
Where an accused person makes allegations, as was done in this case, of harassment and sustained oppression in the process of the interrogation, it is absolutely essential that the learned trial judge should put those matters before the jury and put them before them in a very clear and unqualified form, indicating to the jury, in accordance with the onus of proof, that if they should raise in their minds any doubt as to the truth of the admissions alleged to have been made, that the requirements of justice are that the accused should be acquitted.
As appears from the portion of this judgment which is to follow, dealing with the question of the manner in which the learned trial judge dealt in detail with the allegations concerning the voluntary and truthful nature of these statements, in his charge to the jury, I am satisfied that in this particular case, on the facts of it, the trial judge’s charge was adequate and was sufficiently protective of the accused against the risk of a wrong and/or undue conviction, notwithstanding the absence from it of any specific warning concerning the risks of convicting on the basis of statements of admission or confession which were not corroborated by outside evidence.
With regard to the judge’s charge to the jury, a further issue arose on behalf of each of the accused at the trial and formed a part, though only a minor part, as I understood it, in the submissions made on this appeal. By reason of its importance, however, it is necessary that I should deal with it.
At the trial each of the accused gave evidence concerning the circumstances surrounding the taking of statements from him at the trial within a trial as a result of which the learned trial judge ruled that the statements taken were admissible in evidence before the jury. Broadly speaking, the allegations made by each of the accused at that hearing were to the effect that they were harassed, threatened and, to an extent, assaulted and that they were induced to make statements by an inducement involving in each case the situation of their respective wives who were in custody. In each case, also, it was stated by the accused that the statements were not of their own creation but that words were written down or dictated by members of the Garda Siochana, and they were induced or cajoled or bullied into signing the document so written out.
At the trial, in the presence of the jury, these allegations were repeated and the two accused, each of whom gave evidence before the jury on his own trial, in addition to denying participation in the crime and giving an account of his movements on the evening when the crime was committed, gave again the evidence in substantially identical terms to what had been sworn to by them in the trial within a trial, in the absence of the jury.
In those circumstances, it was specifically contended on behalf of each of the accused, prior to the commencement of the judge’s charge that the learned trial judge should direct the jury that apart from reaching a conclusion with regard to whether the confessions which had been admitted in evidence were true and genuine, that they should firstly reach a conclusion as to whether they were voluntarily made and accordingly should have been admitted into evidence, and in effect, that if they concluded that they were not voluntarily made that they should not make any further inquiry as to whether they were or were not true.
This application was rejected by the learned trial judge, and I am satisfied that he was correct in so doing.
Having regard to the decision of this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, it is clear that the function of ruling on the admissibility of confessions or incriminating statements alleged to have been made by an accused is a mixed question of fact and law which falls within the function, in a trial had with a jury, of the trial judge. I am satisfied that it follows from that fact that there cannot be, as it were, any question of an appeal from or review by the jury of the decision of the trial judge to admit statements into evidence. If a judge should err, either in the principles which he applied or by acting on insufficient or non-existent evidence in reaching a conclusion that statements were admissible, then, he must be corrected on appeal by an appellate court.
Where, as has occurred in this case, the issue with regard to the admissibility of statements turns largely on allegations of threats, assault, inducement or harassment, or of what is described as the “planting” of statements, then, the function of the jury is, I am satisfied, as follows.
It must be clearly directed by the trial judge to have regard to all the evidence which is before it, including all the evidence suggesting that the statement has been obtained by any of the unlawful methods which I have mentioned above for the purpose of ascertaining whether they are satisfied beyond a reasonable doubt that the confession or incriminating statement made by the accused is true and is a sufficient proof of his guilt.
A jury is not bound by a finding of fact made by a trial judge in the course of his ruling on the admissibility of a statement such as, for example, a rejection by him of an allegation that a member of the Garda Siochana assaulted the accused whilst in his custody and thus obtained the statement from him. It must be made clear, whether by specific warning or by a positive direction to a jury that their function in having to be satisfied beyond a reasonable doubt as to the truth of a voluntary statement admitted into evidence before them necessarily involves an examination by them of allegations of any description which are relevant to the question as to whether the statement was truly voluntarily given or not. It should be made clear to them that if they have a reasonable doubt as to whether a statement was truly voluntarily given that that would form a very solid ground for also entertaining a reasonable doubt as to whether it was true.
I have very carefully considered the entire charge of the learned trial judge in this case. In considerable detail, notwithstanding the length of the case, and with complete accuracy, he put before the jury the allegations of every description made by each of the accused, going to the question as to whether these statements were voluntarily given. The terms of his charge clearly made that question relevant, and highly relevant, to the question as to whether the statements could be satisfactorily accepted by the jury beyond a reasonable doubt as being true.
Having regard to that conclusion concerning the nature of the charge, I am satisfied that this ground of appeal must also fail.
The appeal of Christopher Quilligan
The first ground of appeal submitted on behalf of this appellant was at (a) in the grounds, in the following terms:
“The said honourable Court erred in law in the exercise of its discretion to allow the trial to proceed.”
The facts concerning this ground on behalf of this appellant are as to the actual timing and delay in the trial, between December, 1985, and October, 1989, already set out in this judgment, dealing with the similar ground put forward on behalf of the appellant Patrick O’Reilly.
In the case of this appellant, however, further facts are material to this ground. They may very shortly be summarised by saying that having regard to a statement given to the Garda Siochana and forming part of the book of the evidence by a Mrs. Gwendolina Murphy who lived immediately beside this appellant, she would, on the night when the murder and burglary occurred, have placed this appellant in his own flat at Blackpool in Cork, from approximately 1.45 am until 2.00 am. This witness gave evidence that she was on bad terms with the appellant and on the particular night abused him because he was noisily arguing and fighting with his wife. If that evidence were accepted by a jury as being true, then, on the evidence given by the witnesses with regard to the happening of the attack on the house of the deceased Mr. Willis and the burglary happening therein, it could persuasively be argued that it would not have been possible, having regard to the distance between where this appellant was seen by Mrs. Murphy between a quarter to two and two o’clock on this particular night, for him to have taken part in the raid on the deceased’s house. Mrs. Murphy gave evidence on the trial in December, 1985, and was still alive, though apparently indisposed at the time when the case was adjourned at the request of the Director of Public Prosecutions, in the spring of 1989. She died shortly before the holding of the trial before Costello J. in October, 1989. The short submission is that having regard to the long delay between December, 1985, which was the first trial before Barr J. on the charge of murder and the trial which commenced in October, 1989, on the charge of burglary, before Costello J., a delay to which the appellant cannot be said in any way to have contributed, even though that delay might not be said to be the fault of the Director of Public Prosecutions, that the prejudice arising to this appellant from the intervening death of Mrs. Murphy whose evidence constituted in effect or potentially an alibi, in a case where the only evidence against the accused, of any real significance, was the evidence of admissions alleged to have been made whilst in garda custody made it unfair to permit the trial to proceed.
In The State (O’Connell) v. Fawsitt [1986] I.R. 362, in a judgment with which the other members of the Court agreed, I stated the principles applicable to this question of excessive delay in the prosecution of a criminal trial in two separate paragraphs at page 379. They are as follows:
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition . . .
I have come to the conclusion that there was in this case an excessive delay prejudicial to the prosecutor’s chance of a fair trial. The determining feature, in my view, is the non-availability of one of the witnesses who would have been a material witness for the defence. It is not disputed on the facts which were before the High Court that such a witness was available and apparently willing to give evidence at earlier stages but, with the passage of time, has become unavailable and cannot now be made available as a witness. That fact alone, having regard to the extreme length of the delay, makes this a case in which, in all the circumstances, I am satisfied the delay can be considered as being both excessive and prejudicial and that, accordingly, the prosecutor was entitled to his order of prohibition.”
In The State (O’Connell) v. Fawsitt [1986] I.R. 362, the return for trial of the prosecutor, which was on two charges of assault causing actual bodily harm, was dated the 8th July, 1982, and the incident had occurred in January, 1981. Eventually, after a number of adjournments caused by the arrears of work listed for the Circuit Criminal Court in Cork, the trial was finally fixed for the 30th April, 1985. All the intervening adjournments had been opposed on behalf of the prosecutor in that case but the gap between the order returning the prosecutor for trial and the trial eventually prohibited was under three years.
I have carefully considered the facts of this case and even accepting, as I do, that the Director of Public Prosecutions cannot be said to have been at fault contributing to this delay, I am driven to the conclusion that, having regard to the general right of an accused person to a trial with reasonable expedition, mentioned by this Court in the judgment in In re Paul Singer (No. 2) (1960) 98 I.L.T.R. 112 and referred to by me in The State (O’Connell) v. Fawsitt [1986] I.R. 362, and having regard to the prejudice that, undoubtedly, potentially exists from the non-availability of the witness Mrs. Gwendolina Murphy, that in the interests of justice this trial which commenced in October, 1989, should have been prevented upon the principles outlined in these cases. On that basis, therefore, I would allow the appeal of Christopher Quilligan and, having regard to the grounds on which I would be allowing it, there can be no question of any order for a re-trial.

Hederman J.
I agree with the conclusions of the Chief Justice and would propose to offer my views on two topics only, the matter of corroboration and the respective functions of judge and jury in regard to the admission of confession evidence.

The last substantial ground of appeal before this Court in the case of Patrick O’Reilly was ground (No. 11), that the learned trial judge erred in law in not holding that it was essential, in the interests of justice, that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.
Custodial interrogation is not per se illegal when it is not conducted in a manner which is an abuse or a violation of constitutional or legal safeguards.
Members of the garda who desire to interrogate a suspect who is in custody must bear in mind that he has the following rights:
1. He has the right to remain silent and to be informed that if he does say anything it may be used in evidence.
2. He has the right to have a legal representative of his own choice present.
3. That he cannot be detained incommunicado.
4. That he has the right to the presence of a medical practitioner of his own choice.
Any assertion of these rights must be honoured. (See In re The Emergency Powers Bill, 1976 [1977] I.R. 159 and now s. 9 of the Criminal Justice Act, 1984).
If a suspect is reluctant to answer questions he must not be offered inducements to confess including suggestions which minimise the legal or the moral seriousness of the crime under investigation.
It must not be suggested that silence is proof or evidence of guilt. The interrogation must be conducted to protect the innocent and garda officers must not act as though the suspect is guilty.
If all of these safeguards have been observed and the detained person agrees to or expresses a desire to answer questions or to make a statement then all that he says may be used in evidence provided that the prosecution establishes that the statement was voluntary and that it truly records what the detained person said. If the evidence is admitted the prosecution must still prove the truth of any such incriminating material.
The voluntariness of an admission is determined by examining and considering the totality of the circumstances including the characteristics of the detained person, the techniques and duration of the interrogation and the environment in which the interrogation takes place.

It is true that the history of criminal trials discloses that there have been convictions procured by fabricated evidence or by innocently mistaken evidence or by evidence procured in circumstances which, if known at the time of the trial, would have rendered it inadmissible. The danger of honest mistake is well illustrated in the decision of this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33. But insofar as the danger of fabricated evidence is concerned it appears to me that a rule requiring corroboration of the making of admissions would serve no useful purpose as those most likely to give corroborative evidence would be persons themselves guilty of crime. While it may be said that members of the garda, by reason of their profession, have a special interest in bringing law-breakers to book, it would not on that account be reasonable, in effect, to equate them with accomplices in a crime.
I am satisfied that if all of the conditions I have earlier referred to are observed, particularly the presence of a legal representative, if asked for, this would be a greater safeguard than a requirement of corroboration. If a confession is the sole evidence of the accused’s guilt and if it has been established that the confession was made in circumstances which follow the criteria that I have already referred to, I do not see why it should be necessary to require corroboration of that which the accused, as a suspect, has asserted to be true, even if he subsequently denies the truth of it. During the trial it may indeed be established that the statement is untrue, but that is a different issue. I draw a distinction between the necessity for corroboration of the evidence of a single witness who is not the accused and the admissions of the accused himself. The former topic does not fall for decision in this case. In the latter case it is the accused’s own account which raises the issue and frequently the accused may be the only person who has any evidence to offer as to the perpetration of the crime. I cannot accept the proposition that where an accused has truthfully admitted guilt in the course of the investigation that such admission is insufficient without corroboration.
So far as admissibility is concerned, it must be borne in mind that this raises a mixed question of fact and law. The law, which is the sole preserve of the trial judge, falls to be determined by him in the light of the facts in each particular case.
As this question was so recently reconsidered by this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, I would not depart from that decision. In the result it is my opinion that the factual determination in this case in relation to the admissibility was properly undertaken by the trial judge. However, it must be borne in mind that this determination was only for the specific question of the admissibility of evidence. It did not have the effect of removing from the jury the right to determine the truth of the disputed facts and in consequence to give such weight as they thought proper to the evidence admitted by the trial judge. If the matter is pursued by the defence, after the ruling of the trial judge, it is his duty to instruct the jury on the legal effect and consequences of their not being satisfied as to the truth of the prosecution’s evidence in support of the claim that the admissions relied upon were obtained in circumstances which did not raise doubts as to their truth or as to the fairness of the circumstances of the interrogation.
For these reasons I am satisfied that the learned trial judge did not err in law in not instructing the jury that it would be dangerous to convict the appellant on the uncorroborated evidence of the admissions made by him while in garda custody.

McCarthy J.
I have read the judgment of the Chief Justice. I adopt the statement of facts contained in it and I respectfully agree with his conclusions on grounds (1), (2), (3), (4), (5), (7), (8), and (9).
Ground Number (11)
“That the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission made by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.”
In argument this ground was limited to the contention that following the rule of practice laid down by this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, a judge should warn a jury that whilst they are entitled to do so it should ordinarily be considered unsafe to convict on the uncorroborated evidence of the existence of such admissions. In that case, Kingsmill Moore J., delivering the judgment of the Court, said at p. 37:
“It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestibility and lack of responsibility of children of tender age find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence, unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries that they should not convict unless they have weighed the evidence with the most extreme care. Similarly the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases, have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it. It is submitted by Mr. Sorahan, counsel for the prisoner, that the time has come for such an extension, that accumulated experience has demonstrated the necessity for warning a jury as to the mistakes which can be made, and which have been made, in the identification by witnesses of persons accused and, in particular, that a jury should be told that an identification parade, though the best available method of confirming identification, is very far from infallible.
Mr. Sorahan referred to cases such as the Beck Case and the Slater Case , which have passed into legal history as classical examples of erroneous identification and to two recent cases in our jurisdiction where persons had been convicted on what appeared to be entirely satisfactory identification but where subsequent investigation proved the identification to have been wrong. Judicial experience, including that of some members of this Court, could provide further instances where positive and honest identification was shown to be mistaken.”
Towards the end of the judgment at pp. 39 and 40, Kingsmill Moore J., said:
“We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.
This direction is not meant to be a stereotyped formula. It may be too condensed to be fully appreciated by a jury without some further explanation and the facts of an individual case may require it to be couched in stronger or more ample terms, as when the witness or witnesses had no previous acquaintance with the appearance of the accused or had only an indifferent opportunity for observation. It does, however, contain a minimum warning which should be given in any case which depends on visual identification. No specific reference is made to ‘corroboration in a material particular implicating the accused’. An item of evidence falling within this formula may, according to its nature, have very little or very great probative value. This consideration is meant to be covered by the words ‘in the light of all the circumstances, and with due regard to all the other evidence in the case’, and it is for the judge to deal with the lesser or greater probative value of any item of corroborative evidence.”
Instances of a statutory requirement of corroboration may be found in s. 3, sub-s. 2 of the Illegitimate Children (Affiliation Orders) Act, 1930; s. 105 of the Road Traffic Act, 1963; s. 30 of the Children Act, 1908, as amended by s. 28, sub-s. 2 of the Criminal Justice Administration Act, 1914; s. 13 of the Perjury Act, 1911; s. 48 of the Offences Against the Person Act, 1861; ss. 1, 2 and 6 of the Criminal Law (Amendment) Act, 1935, these latter now subject to s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990.
Rules of practice as to the danger of coming to a conclusion on uncorroborated evidence have been established in a variety of cases. In the criminal law, such a warning must be given in respect of the evidence of an accomplice ( Attorney General v. Levison [1932] I.R. 158), the justification being that an accomplice will tend to minimise his own role in the crime and exaggerate that of the accused; in sexual offences generally because, it is said, the charge is easy to make and difficult to refute or can be the result of hysterical or vindictive motives; the sworn evidence of children because they are more susceptible to the influence of third persons and may allow their imaginations to run away with them; in claims against the estates of deceased persons, because of the absence through death of one of the parties to the transaction; in matrimonial causes because, it is said, “experience has shown the risk of a miscarriage of justice in acting on the uncorroborated testimony of a spouse in this class of case” (Simon P. in Ali v. Ali [1965] 3 All E.R. 480).
The list is not closed. In 1977 an official inquiry (The Ó Briain Committee) was set up to consider what additional safeguards might be necessary for the protection against ill-treatment of persons in Garda custody, having regard to allegations made in relation to persons held in such custody pursuant to s. 30 of the Offences Against the State Act, 1939, or s. 2 of the Emergency Powers Act, 1976, and for the protection of members of the Garda Siochana against unjustified allegations of such ill-treatment. The Committee (Prl. 158, 1978) did make recommendations and many of these have been incorporated into the Criminal Justice Act, 1984. It would be closing one’s eyes and ears as a member of the public not to recognise recurring public disquiet in respect of convictions in Ireland and in the United Kingdom based upon uncorroborated evidence of admissions allegedly made while in police custody, when no warning as to the danger of acting on such evidence has been given to a jury, if appropriate, or to the court itself, if there is no jury. No argument has been advanced that a conviction may not be obtained on such evidence if it is uncorroborated; the argument is merely that there should be a warning to the jury or to those acting in place of the jury.
Some of the justification for the requirement or desirability of corroboration derives from the nature of the offence as in sexual cases (now qualified by the Act of 1990); from the age of the witness, as in children’s cases; from the motive of the witness as in accomplice cases; from, inter alia, the risk of a miscarriage of justice as in matrimonial cases. They are all cases related to the quality of the witness as such. That is not the immediate question here where we are dealing with the use of confessions, whether written or oral. It is the confession itself that is the evidence; this is particularly concrete in the case of a written confession. The evidence of those called to prove the voluntary nature of the confession is ancillary to the critical evidence. The trial judge decides on the issue of admissibility of that confession; in doing so he must come to a conclusion of fact on whether or not there was any inducement or threat or oppressive conduct such as to make it other than voluntary. An instance of a conclusion by the Court of Criminal Appeal that it was not satisfied that statements made by an accused were voluntary may be found in The People (Director of Public Prosecutions) v. Breathnach (1981) 2 Frewen 43; such a conclusion may reflect upon those who testify as to the voluntary nature of the confession; so does any conclusion that rejects the evidence of a witness. The problem is the greater because of the established practice, so ruled by the trial judge, that it is for the trial judge and him alone to rule upon the issue as to whether or not the confession was made voluntarily; it is for the jury to determine whether or not that voluntary confession may be accepted as true in whole or in part. Both inquiries, that by judge and that by jury, tend to cover the same ground and the trial judge in the instant case was at pains to deal extensively with all of the allegations of impropriety made against the gardaí. As I will advert later in this judgment, the issue of whether or not the confession was made voluntarily, a mixed issue of fact and law, by its determination by the trial judge alone, removes from the jury a determination of one of the issues of fact relevant to the guilt or innocence of the accused. This consideration seems to me to be highly relevant to the issue concerning corroboration. One must address the question as to how the trial judge should charge the jury on this aspect. In The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, Kingsmill Moore J. identified the minimum warning which should be given to a jury in a case which depends on visual identification, this founded upon the fact of there being a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous. The “corroboration in a material particular implicating the accused” was to be found in the due regard to all the other evidence. But, in the case of contested admissions, what is the appropriate direction to the jury? There is no difficulty as to the direction as to corroboration itself – this may be found in a variety of other evidence, including, as in this case, the fact that a significant detail in the admission was borne out by subsequent discovery at the instance of the person in detention. Corroboration does not depend upon the evidence of other gardaí, one should look elsewhere. But, if the jury must be told why corroboration is required, what is the formula for so doing? The judicial inquiry into the voluntary nature of the admission must be presumed to have been adequately carried out but it is an inquiry to resolve an evidential problem, not the question of guilt. In my view, it is entirely appropriate that a trial judge should inform a jury that he has held such an inquiry and was satisfied, for the purpose of admitting the same in evidence, that the prosecution had established that the admission was made voluntarily. That, however, does not in any sense preclude the jury, when evaluating the admission, from looking for support or corroborative evidence in a material particular from outside the admission itself. A person making a statement may, for a variety of reasons, not least that being a wish to please the questioner, admit to doing something he did not do or, in some cases, he could not have done. The jury then may, properly, be cautioned of the danger of convicting where no such corroboration is to be found and conviction would entirely depend upon the admission.
Having regard to the added precautions that have been created by the Act of 1984, it may be said that matters of this kind are for the legislature only. I do not agree. We are here dealing with a critical part of the constitutional frame, the right to a fair trial, ordinarily before a jury. Statutory provisions as to corroboration have been made in cases involving children and otherwise. Yet this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 introduced this specific requirement in regard to the charge to the jury in cases involving visual identification. Of course, the legislature may introduce this or even greater requirements in respect of corroboration; but it may not. The executive, of which the Gardaí form part, may not decide that such a precaution is necessary and, therefore, will not move the legislature to that end. In my view, this Court should, following the example of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, declare it to be an essential part of the procedure for a fair trial in criminal cases where a conviction must depend upon the validity of evidence contained in admissions, written or otherwise, that the jury be warned of the danger of convicting on such evidence if there is no corroboration for it. If one needs to identify a motive then the very wish to secure a conviction, particularly when he is convinced of the guilt of the person in custody, itself constitutes a purpose of his own on the part of the investigating garda.
In the course of his charge to the jury, the learned trial judge said:
“There is another legal point to which some reference has been made and which I should touch on briefly. It does happen that accused persons make a full confession and are tried, and the jury decides that the confession is a genuine one and a true one given voluntarily, and that is sufficient evidence to find the accused guilty. The law does not require any corroboration of confession evidence. Now, I am sure you will have seen discussions in the newspapers, television programmes, perhaps, on whether this is a good law or a bad law, whether there should be a law which provides for corroboration of confessions, but you are not concerned whether the law is a good law or not, neither am I. This court has to apply the law, and the law is that if you come to the conclusion that the confessions, in either or both of these cases, were true confessions, then you must find the accused guilty, even if there was no corroboration.”
This is a correct statement of what was understood to be the law. As I have sought to indicate, in my view it cannot without qualification be accepted as the law now. The law, as yet, does not require corroboration but, in my judgment, it does require that a jury be warned that it is dangerous to convict on admissions made while in police custody, voluntary or otherwise, unless the admissions are corroborated in a material way. It follows that a conviction based upon a direction in law as I have cited cannot stand. It was not suggested in argument that if the direction were wrong, the Court should apply s. 5, sub-s. 1 (a) of the Courts of Justice Act, 1928.
The question of the statement being voluntary
In accordance with the decision of this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, the learned trial judge held a trial within the trial to determine the mixed question of fact and law as to whether or not the statement made by this appellant was voluntary. Having concluded that it was voluntary, he admitted the evidence as to the making of the statement. In the course of his charge to the jury he made a number of references to this statement:
“(a) Now, no difficulty will arise in this case in regard to that definition [the offence of burglary] because if you accept that the statements of the accused, the confessions of the accused, are true, then they are guilty of burglary – and that brings me to what I will come back to later, namely, that the issue in the case, the important, vital issue in the case, is whether the confessions and admissions of guilt are true. If you come to the view that they are true, then the person who made that confession or admission is guilty of burglary and you find the answer ‘guilty’.
(b) You have heard an explanation given by each of the accused as to how they made what they say was a false confession. If having heard that explanation you think it might be true but that you are not certain, then the accused is entitled to the benefit of the doubt.
(c) There is another legal point to which some reference has been made and which I should touch on briefly. It does happen that accused persons make a full confession and are tried, and the jury decides that the confession is a genuine one and a true one given voluntarily, and that is sufficient evidence to find the accused guilty.
(d) Like a lot of long cases, at the end of it the issue that has to be determined becomes very clear – now, that doesn’t mean that it’s easy, but it becomes very clear. And the issue which you have to determine is whether or not the confessions and admissions of guilt or each of these accused were true. If they made a true confession then they are guilty; if the confessions were false then they are not guilty, and you have to decide then whether or nor these accused made false confessions or true confessions, bearing in mind the words I told you about the onus of proof being on the prosecution to establish beyond a reasonable doubt that the confessions were true.
(e) There is no evidence against Mr. O’Reilly other than his own admissions and confession. And if you decide beyond any reasonable doubt that his confessions are true then you must find him ‘guilty’.
(f) Ladies and Gentlemen, the next various complete piece of evidence is how the statement was taken, because he says he didn’t dictate it at all; he says it was presented to him and he just signed it, something that had been made up. You have to decide where the truth lies in that bearing in mind the onus of proof that is on the prosecution. Then, ladies and gentlemen, you come to the next day, the 13th December. Now, the prosection don’t rely solely on the statement that he made on the night of the 12th, because they say this is a guilty man who on the next day drove us out and showed the gardaí the route they had taken, and they say that must be a guilty person because he was in fact impliedly admitting that he had been on the journey on the night of the crime and was helping the guards in showing them where they had gone. You have heard his explanation for this and he explained how he was prepared to do anything to get out of the Garda station. He was shocked when he heard that he was going to stay for another 24 hours, and he went out for the purpose of getting out of the station and he was prepared to go along with what was a charade as far as he was concerned, pretending that this was the journey that they took on the night of the crime. Similarly, when he came back the situation was that he was given a statement which, again, he decided, he was prepared to sign anything and he signed the statement, which indicated that what he had said on the journey was accurate and true and he signed admitting that he had said it. Now, ladies and gentlemen, we know that he was brought down and we know that he saw the co-accused in the afternoon after dinner time and we know that he then saw his wife. And he said this absolutely broke him, seeing his wife and he says that when he was interviewed by MacGillicuddy and Murphy that they put it to him ‘it’s your buddies or your wife’, and they were putting it to him ‘if you make a statement implicating Quilligan, then your wife will get out.’ That is denied by the gardaí and you have to consider where the truth lies. His case is that his will was so overborne by what had happened to him that he would sign anything and that he was prepared to sign anything to get his wife out. The Garda evidence isn’t so, that he gave his signed confession because he was guilty, because he knew he was guilty, because he felt that there was no point in going on in denying his guilt on the night of the 12th, and that on the 13th he was accepting the fact that he had confessed to the crime and was going along with the situation that had then resulted. That, ladies and gentlemen, is the case against Mr. O’Reilly, or rather the highlights of the case, as I see it, and the conflicts which you have to resolve. It is your duty, ladies and gentlemen, if on the consideration of all the evidence you have no reasonable doubt but that the confession which Mr. O’Reilly made was a true confession, it is your duty to find him guilty. It is your duty upon having considered all the evidence in the case against Mr. Quilligan if you have no reasonable doubt but that his confession was true, to find him guilty. If however, ladies and gentlemen, you have a reasonable doubt that the confession isn’t true, the accused Mr. O’Reilly, is entitled to the benefit of that doubt and then you find him not guilty.”
At the conclusion of the charge, counsel for Mr. O’Reilly supported the application made by counsel for Mr. Quilligan which was as follows:
“The second matter of law that I would ask your Lordship to deal with and which your Lordship hasn’t dealt with at all in my respectful submission is the onus of proof that rests upon the prosecution in relation to a statement. And in my respectful submission your Lordship ought to tell the jury what the legal position is and what the State must establish, where they seek to rely upon a statement, namely, my Lord, that it is freely and voluntarily given and that it has not been obtained my Lord by trick or threat, ill-treatment, inducement or as a result of the mind or will of the accused having been overborne.”
To this the Judge replied:
“I disagree, Mr. White. I think that was my job. I did that on thevoir dire. It is then a matter for the jury to decide whether the statement was true.”
Having regard to this earlier ruling, counsel for Mr. O’Reilly quite properly did not do more than formally support the earlier submission. These submissions reflected a submission made earlier that apart from reaching a conclusion with regard to the truth or genuine nature of the confession, the jury should firstly reach a conclusion as to whether it was voluntarily made.
In The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, the Chief Justice said at pp. 473 and 474:
“For the reasons which I have sought to outline in this judgment, I have come to the conclusion that the interests of justice in criminal trials with a jury would be best and most likely served by a return to the procedure of the voir dire and to the principle that issues of both fact and law necessary to determine the admissibility of any evidence should be tried by a judge in the absence of the jury. As I have already indicated, this in no way inhibits the trial of the same issues of fact in the presence of and before the jury, their relevance being not towards the legal admissibility of the evidence being contested, but rather towards its weight or credibility.”
Henchy J., at p. 488, said:
“But it is also for the judge, when at the end of the case he addresses the jury, to direct their attention to the circumstances of the questioned statement and to tell them that it is for them to decide, having regard to all the evidence, what probative value, if any, they should give to the statement.”
Griffin J., at p. 490, said:
“If the statement survived that test, it was admissible in evidence and was put before the jury as part of the evidence for the prosecution, the truth of the statement being a crucial question for the jury. It was then the right of counsel for the defence to cross-examine again, in the presence of the jury, the witnesses who had given evidence in their absence, in the hope of persuading the jury that the statement had been improperly obtained and was therefore unreliable. It was the function of the jury (after proper direction in that behalf by the trial judge) to give to the statement such weight and value as in all the circumstances of the particular case they thought it deserved.”
Hederman J. agreed with the judgment of the Chief Justice. Walsh J. dissented on the substantive issue as to the method of holding the trial within a trial, commonly called the voir dire. At p. 480 he said:
“The constitutional function of the jury is to decide questions of fact. In the type of criminal case in which the success of the whole prosecution depends upon the admissibility of a statement by an accused person (cases of which seem to have become more frequent
in recent years) it would seem incongruous if the most vital facts of the case, namely those which will govern the admissibility of the evidence without which the prosecution must fail, should be taken away from the jury. Admittedly until The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, it was always the practice for the trial judge alone to decide these matters but the whole question of evidence obtained by unconstitutional methods only surfaced with The People (Attorney General) v. O’Brien [1965] I.R. 142. The law as expounded in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was to adapt to the new situation, as indeed the law did when the Judges’ Rules were formulated and various other rules of evidence dealing with corroboration etc. The whole purpose of judge made rules is to adapt the law to changing conditions. The purpose of the rule enunciated in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was to ensure that the essential facts in a case are to be decided by the tribunal whose exclusive function it is to decide facts, namely, the jury. In the case of a court of a single judge or several judges which act without a jury, both functions, namely, the finding of fact and the legal ruling based upon the resolution of the issue of facts, must be made by the said tribunal, which thus makes for a much more difficult situation than when the task is divided between the judge and the jury.”
In Chan Wie Keung v. R. [1967] 2 A.C. 160, a case cited in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, Lord Hodson reviewed a number of decisions including the observation of Byrne J., giving the judgment of the Court of Criminal Appeal in England in R. v. Bass [1953] 1 Q.B. 680, who said “when a statement has been admitted by the judge, he should direct the jury to apply to their consideration of it the principle as stated by Lord Sumner, and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.” This was criticised by the High Court of Australia in Basto v. R. (1954) 91 C.L.R. 628, where it was stated that the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect, stating, “A confessional statement may be voluntary and yet to act upon it might be quite unsafe; it may have no probative value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth.” In Chan Wie Keung v. R. [1967] 2 A.C. 160, in the trial in Hong Kong, the judge had given a general direction to the jury that they must be satisfied beyond reasonable doubt of the guilt of the appellant and that, if they had any doubt about the confessions, they must acquit, and that it was for them to give such weight and value to the confessions as they thought proper. The judge did not add a further direction that the jury must be satisfied as to whether the confessions were made voluntarily, and if not so satisfied they should give no weight at all to them and disregard them. But for a technical difficulty the majority of the Court of Appeal would have allowed the appeal on the ground that it was necessary for the judge to have given the further direction leaving the issue of the voluntariness of the statement to the jury notwithstanding that the judge had given his ruling as to its admissibility. It was held that the judge did not follow the course of giving a specific direction that the jury must be satisfied beyond reasonable doubt as to the voluntariness of the confessions before giving them any consideration.
This decision was followed in R. v. Ovenell [1969] 1 Q.B. 17 and R. v. Burgess [1968] 2 Q.B. 112, both decisions of the Court of Appeal in England.
Article 38, s. 5 of the Constitution states that:
“Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.”
Trial includes the resolution of all issues of fact. As Henchy J. said in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384″in which the jury, constituted in a manner calculated to ensure the achievement of the proper exercise of their functions, would, under the governance of the judge, be the arbiters of all disputed issues of fact and, in particular, the issue of guilt or innocence.” In the same case, Finlay P., as he then was, put the question “If the legislature were to purport to enact a statute relating to particular charges not coming within the exceptions I have already outlined (envisaged in Article 38, s. 5 itself) providing that a portion only of the facts necessary to determine the questions of guilt or innocence should be determined by the judge, would such legislation be consistent with Article 38, s. 5?” The question was not answered in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384, and any reliance upon The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was weakened by The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460. The question of the admissibility of a confession may depend, in part, on the resolution of an issue of fact – were there threats, was there an inducement etc.What follows from the resolution of these issues is a question of law. I am unable to reconcile the constitutional guarantee of trial by jury with an exclusive right in the trial judge to determine the issue as to whether or not a confession was voluntarily made. In The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, as referred to in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, Walsh J. said at p. 86 of the report:
“A similar situation arises with regard to the voluntary character of a statement. It is for the trial judge, in the first instance, to decide upon the admissibility; but he cannot decide upon the truth of the statement. A judge in such a case must direct the jury that they must be satisfied that the statement is true, or true in material respects, before they can accept it as evidence to be acted upon. In many cases consideration of this matter may involve the jury in considering and arriving at a conclusion on the circumstances under which the statement was made or obtained.”
Clearly, a statement may be involuntary, being obtained by threats, but true; (historically, it was only statements obtained under torture that were accepted as true;) statements made voluntarily may be untrue; involuntary statements may be untrue and voluntary statements may be true. There is no norm. In my view, to exclude the jury from a consideration of whether or not a statement was voluntarily made is to deny the accused the constitutional right to trial by jury. That right is not ensured by limiting the jury’s function to a determination of whether or not the statement is true even while directing the jury that the determination of truth or otherwise may depend upon their view as to the various allegations of impropriety against, as in this case, the gardaí. Apart from the reference at citation (c) in the charge of Costello J., there is no indication given to the jury that they are concerned with whether or not the confession was given voluntarily; in context, I believe the expression”given voluntarily” there was in no sense an invitation to the jury to enter into that inquiry. From my experience at the Bar, I am aware of a number of instances in which, the judge having ruled in favour of admission of the statement as having been voluntarily made, the issue was further left to the jury for their consideration at the end of the case.
For these reasons, I am satisfied that this appeal should be allowed and the conviction set aside. I would order a new trial.
Appeal of Christopher Quilligan
Following the conclusions that I have reached in respect of the appeal of Patrick O’Reilly it follows that this conviction must also be set aside. The question remains as to whether or not there should be an order for a new trial. In this case there were circumstances which did not arise in the other. They are summarised in the judgment of the Chief Justice and concern the evidence of the late Gwendolina Murphy. Mrs. Murphy gave evidence at the first trial in December, 1985, and was cross-examined; that evidence was recorded. After the conclusion of the appeal to this Court and the hearing of the subsequent motion, the case itself, according to the court record, was mentioned in the Central Criminal Court on the 10th March, the 12th May, the 21st July, and the 15th December, 1988, and on the 17th April, 1st May, and 27th June, 1989, when the trial on this indictment commenced before MacKenzie J. The objection detailed by the Chief Justice was then taken on behalf of both Patrick O’Reilly and Christopher Quilligan and rejected by the trial judge. On the second day of the trial, due to the absence of an important witness, the trial was adjourned and the jury discharged. The motion brought by the Director had been filed in December, 1986, and was heard in this Court on the 21st July, 1987, but judgment was not delivered until the 29th July, 1988. That motion was, of course, in respect of the murder charge, no order for re-trial having been made on that charge; the remaining charge, that of burglary, came before the court in December, 1988, and on the dates in 1989 when, earlier, it was adjourned by consent and then on the 28th June, 1989, adjourned as I have indicated. As stated, the argument advanced before Costello J. at the trial under review and in this Court was also made save that before MacKenzie J. it related only to the evidence of Mrs. Quilligan senior and not to that of Mrs. Murphy.
No application was made to the trial judge to admit in evidence the transcript of what Mrs. Murphy had said at the trial before Barr J. in December, 1985. If such application had been made and the relevant authorities cited, it may well be that the learned trial judge would have admitted such evidence. Support for such a course is to be found in O’Connor, Justice of the Peace Volume 1, at p. 418, Stephen Evidence 5th ed. at p. 47 and in R. v. Hall [1973] 1 Q.B. 496, where a number of judicial precedents were cited. I recognise that there may be a disadvantage in not having the jury see and hear the witness but that is a feature that attends every case where a witness dies or is for some other reason unavailable. In many such cases there is no remedy because what may be called a s. 22 procedure had not been adopted and there had been no first trial. It might, on the one hand, not be the most satisfactory evidence; on the other, a written record of Mrs. Murphy’s evidence might well have carried more weight than the evidence of the witness herself.
That does not determine the issue. The real question is whether or not, because of a mishap such as this, a trial is not to proceed. There has been a very significant delay between the trial in December, 1985, in respect of an offence allegedly committed in November, 1984, and the hearing before Costello J. in November, 1989. It was not of the Director’s making no more than it was of the accused’s making. It happened. Part of it was due to delay in this Court. In my view, none of these circumstances are truly germane to the issue. In The State (O’Connell) v. Fawsitt [1986] I.R. 362, there had been excessive delay; some of the intervening adjournments had been opposed; the accused had prejudiced his job opportunities by returning from England in order to face a trial that did not take place; a witness formerly available was no longer available and there was no record of his evidence. This latter fact was the determining feature in the case. The situation in the instant case is, essentially, no different from what would arise if after quite a short delay before a trial an important witness had died. Section 22 of the Criminal Justice Act, 1984, makes some provision to deal with that instance if it is feared it will arise. No such fear existed here; it was a foreseeable but not to be expected development; it was a pure misfortune. As the accused is entitled to a fair trial, so also is the State. In my judgment, the circumstances are not such as to warrant declining to order the new trial that should, in my view, otherwise be held. In the circumstances, I would allow the appeal, discharge the conviction, and order a new retrial.

O’Flaherty J.
I agree with the Chief Justice in his recitation of the facts of these cases; the course that the trial has taken to date; his conclusions of law and the orders that he proposes.
I wish to add my observations on two aspects only, viz.
(1) Should a jury be given a special warning by a trial judge in regard to the need to look for corroboration in the case of a confession obtained while in police custody or while a person is subject to police interrogation?
(2) What is the role of the jury where the trial judge has admitted a statement as voluntary but where there are allegations by the defence of inducements or threats or the like?

As regards corroboration
Counsel for the appellants submit that the reasoning which informed the Court’s judgment in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 should be invoked so as to require that a trial judge should warn a jury of the dangers of acting on confession evidence which is not corroborated though, it is accepted, the jury should be entitled to convict without corroboration if they are convinced of the guilt of the accused.
The first thing to be said about this submission is that The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 emphatically does not lay down that a jury should be asked to look for corroboration in the case of an allegation of mistaken identity and that a warning should be given to a jury in regard to reaching a verdict of guilty in its absence.
Kingsmill Moore J., speaking for the Court, set out, in general terms, the warning that should be given where the verdict depends substantially on the correctness of an identification. He said at p. 39 of the report:
“We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.”
Having pointed out that the direction was not meant to be a stereotyped formula Kingsmill Moore J. went on to say that it did contain a minimum warning which should be given in any case which depends on visual identification. He continued at p. 40 of the report:
“No specific reference is made to ‘corroboration in a material particular implicating the accused’. An item of evidence falling within this formula may, according to its nature, have very little or very great probative value. This consideration is meant to be
covered by the words, ‘in the light of all the circumstances, and with due regard to all the other evidence in the case’, and it is for the judge to deal with the lesser or greater probative value of any item of corroborative evidence.”
It will be clear that far from the jury having to be warned to look for corroboration it is the judge who is to deal with this and put it into the reckoning when he gauges the extent of the warning that he should give the jury.
As far as the criminal law is concerned the only cases where a judge was required as a rule of practice – as opposed to a statutory requirement – to warn a jury of the dangers of acting on uncorroborated evidence were – (i) in the case of the sworn evidence of young children; (ii) in the case of accomplices: Attorney General V. Linehan [1929] I.R. 19 and (iii) in the case of sexual offences.
The warning requirement in the case of young children was based on the likelihood that they might be susceptible to the influence of others or might be ruled by their imaginations. (See now s. 28 of the Criminal Evidence Act, 1992, which was enacted since the argument in this case concluded). A warning in the case of an accomplice was required because he was by definition a discredited witness and one who, very often, had something to gain by offering to give evidence for the prosecution. The rationale for the warning that had been required in the case of sexual offences was not settled and different justifications were put forward for it. Some theories, the historical background of which are explored to some extent in the judgment of Sullivan C.J. in The People (Attorney General) v. Williams [1940] I.R. 195, at pp. 200-201, came to be regarded as offensive to women, such as that women were moved to make complaints by pique or jealousy or because they were ruled by their imaginations. In any event, the law is now governed by s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990, which lays down that it is no longer necessary for the judge to give a warning to a jury in the case of sexual offences where the evidence of the complainant is uncorroborated but he is entitled, in his discretion, to give such a warning and he does not have to use any particular form of words in doing so.
In the result, therefore, it will be clear that the only extant example of a warning requirement based on judicial practice is in the case of discredited witnesses. We are asked, in effect, to assign police testimony in the case of confession evidence to the same category as that of an accomplice. That is the legal landscape in which this plant is to take root. I am satisfied that such a judicial development is not justified.
If there is an attack on confession evidence in the course of a trial I would prefer to leave to the good sense of the trial judge in each individual case to weigh the extent of the warning that he thinks should be given to the jury about acting on the evidence if the matter is uncorroborated. He will of necessity have told the jury about the presumption of innocence and the burden of proof that rests on the prosecution in criminal trials. I think if we attempt to express how the warning should be given in some formula at this stage it would probably give rise to serious problems in its implementation. The administration of justice would not be helped. If we introduce this warning requirement what rationale are we to give it? The only one that springs to mind is that police evidence is to be equated as intrinsically unreliable in the same way as that of accomplices.
Like other members of the Court, I do not shut my mind to the fact that there have been expressions of public unease about certain cases where confessions were obtained. The Oireachtas, too, has become alive to the rights of the suspect in this regard and to the need to afford him proper protections and, thus, it is pertinent to have regard to the protections set out in the Criminal Justice Act, 1984, in regard to persons in custody. I think we are, at this stage of our development, fairly and squarely in an area of policy which should properly be left to the Oireachtas. The question of having electronic recording of police interviews is provided for in s. 27 of the Act of 1984. Regulations have not yet been brought in to implement the provisions of the section. It is not for me to reason why this has not been done but the introduction of audio or audio/visual recordings is as likely to be of benefit to the gardaí as it is to the accused. It would, I am convinced, be a much better way to ensure that a just verdict is reached than the introduction of a corroboration warning requirement.
The trial judge’s function in the “trial within a trial” is to decide whether the statement has been made voluntarily, i.e. without force or threat of force or inducement. The truth of the confession is not directly relevant at that stage. Once the confession is admitted then the question for the jury to consider is whether it is true. Voluntariness is but a test of admissibility. It is not a test of the truth of the statement.
No doubt, the accused is entitled to traverse again all the ground that was traversed before the trial judge. He may bring the jury to the conclusion, accordingly, that the confession statement was fabricated or
was not true or as the case may be. In a sense, the trial judge’s function is but a preliminary step enabling the jury to enter on what is their function which is to weigh the evidence.
In my judgment nothing should be done to take away from the regime which was so definitively established in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460.

Egan J.
I agree with the judgment which has been delivered by McCarthy J.

DPP v Matthews

[2007] I.E.C.C.A. 23
Judgment of the Court delivered on the 29th day of March 2007 by Macken, J.

1 On the 7th December 2004 the Applicant was convicted by the Special Criminal Court of the offence of membership of an unlawful organization, after a hearing which lasted several days, and upon conviction, was sentenced to three years and nine months imprisonment. From that conviction, the Applicant lodged an application for leave to appeal against conviction and sentence. By a decision of this court handed down on the 14th July 2006, the application for leave to appeal against conviction was refused on all of the grounds raised.
2 By notice of motion dated the 28th July 2006 and filed on the 3rd November 2006, application was made for a certificate for leave to appeal to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924 (“the Act of 1924”). By Notice of Motion dated the 28th November 2006, the Applicant (described as the Appellant in both motions) applied to this court for relief in the form of a judgment in respect of an argument raised at the hearing of the application for leave to appeal, which he contends had not been dealt with by the court in its judgment. Both applications came on for hearing on the 27th November 2006. At the suggestion of the Court, outline written submissions were filed by both parties, which were of considerable assistance to the Court.
3 It is proposed to deal with the application for a S. 29 Certificate for leave to appeal first. On this application, it is submitted that three questions ought to be certified to the Supreme Court, arising out of the above judgment delivered on the 14th July 2006. The first two are as follows:
1. Whether a bare opinion belief, unsupported by identifiable factual material, subject only to the criterion that it be held by a member of An Garda Siochana not below the rank of Chief Superintendent, can be given any evidential weight in a prosecution for membership of an illegal organization?
2. Is the undoubted restriction to cross examine on the basis of the opinion in breach of Article 6 of the Convention of Human Rights?
4 The Applicant in his written submissions and at the oral hearing quite properly combines the argument on these two questions, since in reality they arise out of the same issue, namely the status, in the most general sense, of the belief evidence of a Chief Superintendent of An Garda Siochana. The third proposed question is a stand alone one.
5 Section 29 of the Act of 1924, in the version in force at the relevant date, reads as follows:
“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.”
6 By way of preliminary point the Court recalls that its decision of the 14th July 2006 was one refusing leave to appeal, based on the Court’s finding that none of the grounds upon which leave to appeal was sought was established. On its face, the language of Section 29 of the Act of 1924 appears to provide for the possibility of a Certificate for leave to appeal against such a refusal, provided that the decision involves a point of law of exceptional public importance which the Court considers should, in the public interest, be referred to the Supreme Court. While there was fairly wide ranging argument relating to the contended for grounds of appeal, the decision of this court remains one refusing leave to appeal.
7 The Applicant argues that the above questions arise out of this Court’s decision on two of the grounds upon which leave to appeal was sought. Firstly, they arise out of its decision on ground 6, which alleged that the trial was not fair in law because there was no opportunity to test the basis for the opinion of a Chief Superintendent of An Garda Siochana as to the applicant’s membership of an illegal organization, this witness having claimed privilege over the sources of information which led to his holding the belief which he did, on the grounds that to disclose the same would, inter alia, endanger life. Secondly, it is argued that the two questions also arise out of this Court’s decision on Ground 8. That ground alleged that the trial court had erred in law in holding that the failure of the garda witness to disclose those sources was not a breach of the Applicant’s right to a fair trial in accordance with Article 6(3) of the European Convention on Human Rights (“the Convention”), as reflected in Irish law in the provisions of the European Convention on Human Rights Act 2003 (“the Convention Act”).
8 In its judgment of the 14th July 2006 this court found, as is clear from the extract from the judgment cited by the Applicant in his written submissions, that the restriction on the ability of the defence to cross examine the chief superintendent as to the sources for his belief was not, ipso facto, a failure to comply with Article 6 of the Convention. The court also had regard to a recent decision of the Supreme Court in DPP v Martin Kelly [2006] 2 ILRM 321. That judgment was delivered consequent upon a question certified to that Court pursuant to S. 29 of the Act of 1924. The question was:
“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of the evidence of belief given against him at his trial pursuant to the provisions of the Offences Against the State Act 1939, as amended, in a charge of membership of an unlawful organization before the Special Criminal Court.”
9 For the purposes of this part of the judgment, it will be seen that the question raised in that case is analogous to questions 1 and 2 now sought to be certified, save that the question in DPP v Kelly, supra., referred only to the provisions of Article 38 of the Constitution. The judgments in the Supreme Court, both the majority judgment and the assenting judgment, found that there was no breach of Article 38 of the Constitution.
10 Senior counsel for the Applicant Mr. O’Higgins submits as follows. The judgment in the case of DPP v Kelly, supra., does not, in reality, deal with the questions arising in this application, due to the very limitation in the terms of the question certified in the latter case and the decision of the majority. In the course of the oral hearing, he argued that it would not have been permissible in law for the Supreme Court to have pronounced on the position arising pursuant to Article 6 of the Convention, in the context of the question actually raised and national law as it then stood, because the question posed predated the passing of the Convention Act. On the contrary, he contends that since the passing of that Act, there is now an obligation on Irish Courts, and in particular on the Court of Criminal Appeal and the Supreme Court, to apply the jurisprudence of the European Court of Human Rights, and, as here, that concerning the application of Article 6 of the Convention. Clarification by the Supreme Court, as the court of final appeal in this jurisdiction, of the position arising pursuant to the State’s obligations since the passing of the Convention Act, was necessary. Further, it is submitted that since the question posed in the DPP v Kelly, supra, case was considered to have been one of exceptional public importance, the same question, in the context of the Convention and of the Convention Act, must also be a question of exceptional public importance, which it is in the public interest to have clarified.
11 Senior counsel for the Respondent Mr. Bermingham argues to the contrary that the above case, including in particular the judgment of Fennelly, J., was germane to the matters dealt with in this Court’s decision, because in that case the Supreme Court had before it all of the relevant case law of the European Court of Human Rights, and the effect of those cases was fully argued by the parties in the course of the oral hearing before the Supreme Court, even if the question certified was by specific reference to Article 38 of the Constitution. Counsel for the Respondent in these proceedings, who was also counsel for the Respondent before the Supreme Court in the case of DPP v Kelly, supra., confirmed that all such case law was before that court.
12 The Respondent accepts that the case law of the European Court of Human Rights on Article 6 of the Convention, and its impact, was set out and relied upon only in the judgment of Fennelly J., whereas the majority decision of the Supreme Court in DPP v Kelly, supra., was silent on that case law. However,
counsel submits that if the Supreme Court majority had considered that there was any divergence between the case law of the European Court of Human Rights and Irish law on the question of the rights arising pursuant to Article 6 of the Convention, it is inconceivable that the members of the Supreme Court would not have said so, in a case touching upon those very issues. Further, it is argued that had the members of the Court who delivered the majority judgment been in disagreement with the analysis of the case law on Article 6 of the Convention found in the judgment of Fennelly J., it is equally inconceivable that they would have remained silent on the matter. It is therefore submitted that, even if the majority judgment in the case did not pronounce on the effects of the Convention and of Article 6 thereof, nevertheless the assenting judgment of Fennelly, J., and in particular the analysis of the case law of the European Court of Human Rights found in that judgment, should be accepted by this court as correctly reflecting the law on Article 6 in this jurisdiction.
Conclusion
13 This Court has verified that, in the case of DPP v Kelly, supra., the legal submissions filed both on behalf of the Appellant and on behalf of the Respondent relied, inter alia, on the Convention and on the case law of the European Court of Human Rights, including that relating to Article 6 thereof. The court notes also the confirmation by counsel for the Respondent that this case law, among case law from several other jurisdictions, was also opened and relied upon, in the course of the oral hearing of the matter before the Supreme Court.
14 The Court agrees with the submission of counsel for the Respondent that it would be wholly unrealistic to interpret the majority judgment of the Supreme Court in the case of DPP v Kelly, supra., in the isolated manner suggested by counsel for the Applicant. The very detailed and particular analysis of Fennelly, J., on the rights in question, which considered, inter alia, case law from the United States, the United Kingdom and Australia, as well as that of the European Court of Human Rights, cannot be considered as an incidental adjunct to his assenting judgment.
15 The manner in which a reservation to the content of another judgment is normally expressed by a member of the Supreme Court is well established, but there is no such reservation found in any contribution of any member of the Court who formed the majority. Further, it is, as the Respondent rightly contends, inconceivable that if the Supreme Court considered there was a material divergence between Irish law and the case law of the European Court of Human Rights on the question of the right to cross-examine, it would have refrained from saying so. Indeed, well prior to the passing of the Convention Act, case law of the European Court of Human Rights was considered by Irish courts in many cases. It is not necessary for this court to cite in detail those cases. The influence of those cases, even prior to the passing of the Convention is well described in the judgment of Fennelly, J. in the case of Glencar Exploration Plc v Mayo County Council [2002] 1 ILRM 481, in which he stated:
“The judgments of the Court of Human Rights may be useful sources of persuasive authority where they contain reasoning … relevant to the interpretation of legal rights guaranteed by the Convention which are analogous to rights which are known in our law and Constitution and which our courts have to apply.”
16 Moreover, even before the enactment in Irish domestic law of corresponding provisions, there is a line of authority which suggests that, while the terms of any international treaty or accord which the State has ratified are not directly applicable or enforceable in Irish law until adopted into national law, an obligation, both on the State and on relevant organs of State, nevertheless exists in public international law not to enact or implement laws or provisions in contradiction to obligations the State has subscribed to as part of that international treaty or accord. The analysis of the case law in question, as found in the judgment of Fennelly, J. is, having regard to all of the foregoing, one upon which this court was fully entitled to rely in coming to its view as to whether the Applicant had raised grounds sufficient for the purposes of persuading this Court to grant him leave to appeal.
17 That being so, the question which arises for consideration is whether, notwithstanding the foregoing, the questions now posed should nevertheless be referred to the Supreme Court on the basis that they constitute points of law of exceptional public importance, which it is in the public interest to have determined, given that the purpose of the S.29 is essentially appellate in nature and for the purpose of doing justice in a particular case. In this application, it is not submitted on behalf of the Applicant that the correct position in law under the Convention, or pursuant to the case law of the European Court of Human Rights, is different to that set forth in the judgment of Fennelly, J. Nor is it contended that his analysis is in any way flawed in its interpretation of the case law of that Court actually invoked or cited. Nor is it suggested that there is other relevant case law which would in any way undermine the analysis made, or the findings in the judgment of Fennelly, J. arising from that analysis. Nor, finally, is there any suggestion that the fundamental guarantee to life found in Article 2 of the Convention, being the basis, inter alia, upon which the claim to privilege was invoked in the course of the trial, is, according to any case law of the European Court of Human Rights, to be subsumed in all circumstances to the right in an accused to cross-examine a witness in accordance with the protections accorded by Article 6 of the Convention.
18 The same comments might also apply to the question of the value or evidential weight to be given to the belief evidence of a Chief Superintendent. The decision of this court on the 14th July 2006 makes it clear that the issue of the evidential value attaching to such evidence has been determined, in domestic law, for some time. It is not necessary for the purposes of this judgment to repeat what was stated in the decision. No submissions are made in this application, in support of an argument that the decision of the court in DPP v Kelly, supra. or indeed the earlier decision on that issue in O’Leary v Ireland [1993] 1 IR 102, are, in light of the case law of the European Court of Human Rights, no longer good law.
19 In light of the foregoing, the Court does not consider that the Applicant has established that either question sought to be certified is one of exceptional importance within Section 29 of the Act of 1924.
20 Turning now to the proposed third question, this is set out in the following terms:
“In what circumstances can a court reject an application for leave to appeal, on the basis of a judgment handed down after the arguments have been concluded, and the parties have not been afforded the opportunity or invited to address the issues raised in that judgment?”
21 This question arises in light of the fact that this court, in the course of its decision, made reference to and took guidance from the decision of the Supreme Court in DPP v Kelly, supra., including in particular the judgment of Fennelly, J., as well as the judgment in the case of Lynch v Moran & Anor, (unreported, Supreme Court 23rd May 2006), in reaching its conclusions as to whether the Applicant had made out grounds upon which he ought to be granted leave to appeal.
22 As a general principle, where a court proposes to base its decision, inter alia, on a case determined since an oral hearing had taken place, it may be appropriate that the parties should have an opportunity to make submissions, if they wish, on the possible significance of the judgment in question. In the instant case, the court has had regard to the following material factors which required to be taken into account in deciding whether this should be done. The fact that a certificate had been granted in the case of DPP v Kelly, supra., pursuant to the provisions of Section 29 of the Act of 1924 and that judgment was awaited on that question was widely known, and particularly so by those practising in the area of criminal law. The fact that reliance was also placed on that judgment of the Supreme Court in another case determined by this Court, where judgment was also delivered subsequent to oral hearing, namely, DPP v Birney & Ors (unreported, CCA., 12 May 2006), without the parties having been further heard prior to the delivery of the judgment. Also, the fact that the parties in the instant application, despite the importance which the applicant now claims to attach to it, did not move the court to be heard, a request which, if made, would have been readily granted.
23 As to the second case, Moran v Lynch, supra., this was a judgment containing a full history and a detailed analysis of all of the relevant case law concerning issue estoppel in the United Kingdom, Canada, Australia and in Ireland, and which found that issue estoppel does not exist in this jurisdiction, either in favour of the prosecution or in favour of an accused. The decision of the Supreme Court on the issue could scarcely have been more definitive.
24 In relation to the foregoing two cases, the position is that the law has not changed, but has been restated in the majority judgment in DPP v Kelly, supra. As to the assenting judgment of Fennelly, J., his review and analysis of the law, having regard to the case law of the European Court of Human Rights constituted ample guidance for this court in its judgment. The law has been settled in clear terms in the case of Moran v Lynch and Anor., supra. Nevertheless, the existence of those factors does not necessarily constitute in all circumstances valid reasons for the parties to an oral hearing not to have had an opportunity to make further submissions or to comment on those cases prior to judgment. So, for example, where the Supreme Court has materially changed existing law in the area of sexual abuse of young children, that court, in light of the substantial and significant changes made in its judgment in DPP v H (unrept’d) [2006] 1IESC 65, has invited further submissions from parties who had already been heard, prior to delivering judgment in those cases.
25 In light of the foregoing, it is appropriate to consider whether, not having had an opportunity to be heard on the cases upon which the court relied, the Applicant is or was in some material way disadvantaged, and if so, whether in consequence the question proposed raises a point of law of exceptional public importance which it is in the public interest to refer for the opinion of the Supreme Court. As to the question of any disadvantage to the Applicant, counsel did not claim any such disadvantage. Rather, the argument actually put forward is that it is in the interests of justice that the question be certified for the opinion of the Supreme Court, because it is “inappropriate that a judgment might be open to the interpretation that it was reached in private or without hearing the arguments of the parties in relation to the same”.
26 As is clear from the above argument on the first two questions, the Applicant contends that the decision in the case of DPP v Kelly, supra., is not relevant to the matters at issue in the present proceedings, or to his grounds of appeal, for the reasons set out above, which do not need to be repeated. In the case of the second judgment it is not suggested either that the Applicant or his counsel was in any way disadvantaged.
27 That being so, it is not possible to conclude that the question proposed is a question of law of exceptional public importance, in the context of the present case. The case law in particular the Supreme Court judgment in DPP v Patrick Higgins (unrept’d, Sup. Ct. 22 November 1985) makes it clear that the procedure under Section 29 is primarily appellate in nature, and to do justice in a particular case, and is not advisory in nature. Nor does the court consider that even if such a question could arise, taking the applicant’s case at its highest, would it be in the public interest to certify such a question pursuant to S.29 of the Act of 1924.
28 However, the Court considers that in all appropriate cases, it would be both prudent and desirable that parties be invited to make submissions on a judgment delivered between an oral hearing and the determination of an application, if the court intends to invoke in a material way, the findings in such judgment(s), or any change in principles established in such a judgment, and depending of course on the nature of the judgment itself. Since the parties to the action will not know whether such is the likely intention of the court, while they may themselves invite the court to hear them, there could not be any onus on them to do so.
29 In light of the foregoing, the Court refuses the applications made on the motion for a certificate for leave to appeal.
The Second Motion
30 The court now turns to the second motion. As mentioned previously this motion seeks judgment on an argument which the Applicant contends was not determined in this Court’s judgment delivered of the 14th July 2006. The Respondent does not accept that this is so.
31 This issue concerns a decision of the court of trial on the characterisation by it of certain evidence adduced by the prosecution in the course of the trial, as “capable of having an innocent explanation”, in the context of one charge and the consequences of that characterization in the context of a second, unrelated, charge. The Applicant claims that the arguments put forward on his behalf for leave to appeal on this ground were not determined in the decision of this court
32 Put briefly, the background is as follows. The Applicant was tried on two offences. One was possession of explosives, and the second was membership of an illegal organisation. In respect of the first offence, the trial court dismissed the charge, stating that the evidence on this charge was largely circumstantial and capable of an innocent interpretation. Counsel for the Applicant submits that his argument on the application for leave to appeal, was (a) that it was illogical for the trial court to have found that if the evidence adduced in the course of the explosives trial was found by the trial court not to be probative of possession of explosives, it could nevertheless to be held to be consistent with membership of an illegal organization; (b) either the evidence was capable of innocent interpretation or it was not, and (c) that if the evidence was innocent in respect of one charge, that same evidence could not point to an involvement in membership of an illegal organization, the subject of the other charge.
33 Counsel for the Applicant contends that the decision of this court did not deal with this aspect of his application for leave, and that the Applicant is entitled to have a ruling on his arguments, based on the decision of this court in The People (DPP) v Laide, (unreported, CCA, 29th June 2005). Counsel for the Applicant also invokes the case of DPP v D O’S, (unreported, CCA 28th July 2004), in which the court substituted a judgment of that date for its earlier decision of the 27th May 2004.
34 It is argued that, having regard to the circumstances in which the applicant, acquitted of one charge on the basis of the evidence adduced being “capable of an innocent interpretation”, was nevertheless subsequently convicted by the trial court on another charge, on the basis of the same evidence, this court ought to exercise its jurisdiction to consider the extant point made, and should decide this in the applicant’s favour.
Conclusion
35 The court is satisfied that on the above referred to jurisprudence, invoked by counsel for the Applicant, the court may entertain an application such as this.
36 This application depends on a review of the relevant grounds raised by the Applicant in his application for leave to appeal, and on the decision of this court on those grounds.
37 In the Notice of Application for Leave to Appeal and in the written submissions filed on behalf of the Applicant on the 22 November 2005, Ground 4 is stated to be the following:
“The learned trial judges erred in law and in fact in finding that, having decided various pieces of evidence against the prosecutor at the trial of the applicant for explosives, it was open to them to reconsider the same evidence in the context of a trial for membership.”
In support of that ground, the Applicant, in his written submissions relied on certain transcript references, and on the trial court’s rulings. In oral submissions counsel addressed this ground based on several separate arguments. Firstly, he argued that to constitute issue estoppel, the court was entitled to have regard not only to the verdict which had been delivered, but also to any issue arising within the case itself, upon which there had been a definitive ruling, relying in particular on the case of DPP v. O’Callaghan [2001] 1 I.R. 584. Secondly, he submitted that “innocent” in the context of the finding that certain evidence was “capable of having an innocent explanation” must be interpreted as meaning the trial court in its earlier judgment acquitting the Applicant of the explosives charges, had found that the activities in question were “lawful”. Thirdly, that being so, it beggared belief, and was wholly irrational for the trial court to have found that the evidence which did not support one charge (the explosives charge) could or would nevertheless support the other charge (the membership charge). Finally, since the Applicant was, on the law, able to establish that the issue was therefore res judicata, that was conclusive of the matter and entitled the Applicant to have leave to appeal on Ground 4.
38 As to Ground 4, this ground raised a very net legal issue. That net issue was whether issue estoppel in favour of an accused exists in Irish law. That was the only issue set forth in the Application for Leave to Appeal and in the written submissions. While the question of issue estoppel might not have been fully, or definitively, determined at the time of the oral hearing in this case, the position was put beyond doubt by the decision of the Supreme Court in Moran v Lynch, supra. Its ruling that there is no room for issue estoppel in criminal law in Ireland in favour either of an accused or of the prosecution, is clearly stated in the final paragraphs of that judgment, in the following terms: “Given that mutuality is at the heart of issue estoppel, and having
regard further to the concept of ‘equality of arms’ fostered by the Convention and reflected in decisions of the European Court of Human Rights, it seems only logical and reasonable to hold in addition that, if issue estoppel can not operate in favour of the prosecution, it should not operate in favour of the defence by way of unreciprocated advantage either. I would agree with the views expressed by Street CJ. in R v. Blair [1985] 1 N.S.W.R. 584 that in any later criminal trial no question of issue estoppel can arise in relation to any of the rulings that may have been given by the trial judge at the aborted trial. Here I would invoke in support the ‘notional onlooker’ referred to by Hardiman J. in The People (DPP) v. O’Callaghan whose sense of fairness in the operation in the criminal justice system must be kept in mind.
I see no reason grounded in public policy for granting an accused an unreciprocated advantage if issue estoppel does not generate mutuality. In truth, a disservice is done to the integrity and reputation of the criminal process if the scales of justice may be seen by the notional onlooker or by the public at large as forever tilted in favour of an accused and forever tilted against the State. In my opinion, the extension of a consideration of ‘tenderness’ in this regard to an accused, as so described by Brennan J. in Rogers v The Queen [1994] 181 C.L.R. 251, is not warranted having regard to all the other rights he properly enjoys under our criminal justice system.”
39 There was no independent ground in the application for leave to appeal covering any issue as to the meaning to be attached to the phrase “capable of innocent interpretation” or to its implication for the second offence, separate from the arguments raised in support of Ground 4. In fairness to the Applicant his counsel does not claim that there was any such independent ground. There was a separate ground concerning the same material or arguments, namely ground 5, but this concerned the question of corroboration of the belief evidence of the garda witness. The applicant properly does not invoke ground 5 in support of his contention that his argument was not dealt with.
40 It was not necessary or indeed appropriate, in the context of the
actual ground raised, to address the argument(s) invoked on issue estoppel, and now sought to be the subject of a separate judgment, once it became clear that the judgment in the case of Moran v Lynch, supra. disposed of Ground 4 entirely. The arguments raised in support of the existence of issue estoppel in favour of an accused were no longer relevant to that ground, but rather had been superseded by the judgment in that case.
41 In the circumstances the question of any additional judgment in respect of those arguments does not arise.

DPP v Donohue [2007] I.E.C.C.A. 97

Judgment of the court delivered on the 26th October 2007 by Macken, J.

This is an application for a certificate for leave to appeal made pursuant to the provisions of S.29 of the Courts of Justice Act 1924 in respect of a question which the applicant wishes to have certified to the Supreme Court for its opinion, arising out of the decision of this court made on the 28th November 2006 by which this court rejected his application for leave to appeal against conviction.
On the 18th November 2004 the applicant and a co-accused, Niall Binead, were convicted by the Special Criminal Court of the offence of membership of an unlawful organization, namely the IRA, after a hearing which lasted several days, and upon conviction, the applicant was sentenced to four years imprisonment. From that conviction, he lodged an application for leave to appeal against conviction and sentence. The hearing of that application was adjourned on the basis that the parties considered the judgment in a case, which had already referred to the Supreme Court on an analogous question, would be likely to be of relevance to the outcome of the applicant’s application for leave to appeal. By a decision of this court handed down on the 28th November 2006, the application for leave to appeal against conviction was refused on all of the grounds raised.
By Notice of Motion dated the 13th March 2007 application was made to this Court for a certificate for leave to appeal to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924 (“the Act of 1924”). On this application, it is submitted that a single question ought to be certified to the Supreme Court, in the following terms:
“Was the receipt and examination of material concerning the Appellant/Accused, of which neither the Appellant nor his advisers have knowledge or notice, consistent with the State’s obligation to provide a fair trial pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms and Article 38 of the Constitution of Ireland?”
Section 29 of the Act of 1924, in the version in force at the relevant date, reads as follows:
“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.”
By way of preliminary point the Court recalls that its decision of the 14th July 2006 was one refusing leave to appeal, based on the Court’s finding that none of the grounds upon which leave to appeal was sought was established. On its face, the language of Section 29 of the Act of 1924 appears to provide for the possibility of a Certificate for leave to appeal against such a refusal, provided that the decision involves a point of law of exceptional public importance which the Court considers should be referred to the Supreme Court. While there was fairly wide ranging argument relating to the contended for grounds of appeal, the decision of this court was and remains one refusing leave to appeal.
There are, effectively, two strands to the argument of counsel on behalf of the applicant. Firstly he contends that even if the decision of the Supreme Court in DPP v Kelly [20060 ILRM 321, is of some relevance, which he does not accept, it does not lend itself to the conclusion that there is no breach of Article 6 of the European Convention on Human Rights, guaranteeing the accused a fair trial, because the Supreme Court did not consider the subject matter of the question now proposed. Moreover, the Supreme Court in its judgment made it clear, it is submitted, that the trial court must take all measures possible to ensure that a fair trial takes place, and that even if some restrictions against disclosure of information are to be permitted, these restrictions must be the least onerous restrictions possible.
Further, it is submitted that, according to the jurisprudence of the European Court of Human Rights, and contrary to what occurred in the present case before the trial court, the applicant was entitled to know the basis for the opinion or belief of the Chief Superintendent, and the prosecution had failed to furnish this information. The Chief Superintendent of An Garda Siochana, a witness at the trial, had invoked privilege against disclosure of information on the grounds that to disclose the same would, inter alia, endanger life. The information sought therefore could not be elicited from that witness by means of cross-examination of the witness. According to counsel for the applicant, the applicant’s entitlement to disclosure of the information upon which the Chief Superintendent based his opinion or belief stems from obligations on the State flowing from Article 6 of the Convention, as interpreted by the European Court of Human Rights. Finally, counsel further argues that the trial judges were not entitled to and indeed were prohibited by the jurisprudence of that Court from examining documents upon which the witness based his opinion or belief, since according to the jurisprudence of the European Court of Human Rights, that function cannot be carried out by the judges who determine the guilt or innocence of an accused but rather only by a judge(s) who is independent of that decision making task. As part of this latter argument counsel for the applicant also contends that in any event the trial court could not, without infringing Article 6 of the Convention, examine documents for the purposes for which they did this in the present case, which was to determine if the opinion or belief of the Chief Superintendent was reliable, as this was, in effect, to determine the guilt or innocence of the applicant by reference to material which did not form part of the trial at all. The only legitimate basis upon which the material could be reviewed, and that by a judge independent of the trial court, was to ascertain whether there was anything in the material which was or might be of assistance to an accused in his defence.
In support of these arguments, counsel for the Applicant invoked several judgments of the European Court of Human Rights, to which reference will be made later in this judgment.
Counsel for the respondent argues that the approach adopted by the trial judges was in line not only with the jurisprudence of the Supreme Court, citing Ward v Special Criminal Court [1994] 1 IR 60, but also with several decisions of the European Court of Human Rights.
In its judgment of the 28th November 2006 this court found that the restriction on the ability of the defence to cross examine the chief superintendent as to the sources for his belief was not, ipso facto, a failure to comply either with Article 38 of the Constitution or with Article 6 of the Convention, and that the applicant had not made out a case that he was entitled to appeal his conviction on such grounds. The court had regard, inter alia, to long standing jurisprudence and in particular also to the recent decision of the Supreme Court in DPP v Kelly, supra. The judgment in that case was delivered consequent upon a question certified to that court pursuant to S. 29 of the Act of 1924. The question posed in the above case was in the following terms:
“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of the evidence of belief given against him at his trial pursuant to the provisions of the Offences Against the State Act 1939, as amended, in a charge of membership of an unlawful organization before the Special Criminal Court.”
For the purposes of this judgment, it will be seen that the question raised in that case, while somewhat different to that now sought to be certified in the present application, and while the question referred only to the provisions of Article 38 of the Constitution, nevertheless in all such cases – and there have been others – the question raised is as to whether, having regard either to the provisions of the Constitution or to the provisions of Article 6 of the Convention, a question of law of exceptional public importance ought to be certified to the Supreme Court. To that extent, the judgments in the Supreme Court, both the majority judgment and the assenting judgment, in DPP v Kelly, supra., and the more recent decision of this court in DPP v Matthews, unreported, CCA, 29th March 2007, are of assistance in determining the issue now before this court.
In DPP v Kelly, supra., the Supreme Court found that there was no breach of the right to a fair trial guaranteed by Article 38 of the Constitution by reason of the inability of the defence to cross-examine the garda witness as to his sources. In that case, in the separate assenting judgment of Fennelly J. there is also a lengthy analysis of the jurisprudence of the European Court of Human Rights on Article 6 of the Convention. While therefore the majority judgment of the Supreme Court did not make any findings on the jurisprudence in question – presumably because it was not necessary in light of the precise question posed, and its purely Constitutional context (the provisions of the Convention had not, at the relevant date, been adopted into Irish law) – nevertheless this Court, in the case of DPP v Matthews, supra., had an opportunity to consider the lengthy analysis of the jurisprudence, and the appropriate conclusions to be drawn therefrom, set out in the judgment of Fennelly, J. That analysis and those conclusions have not been in any way altered or eroded since the delivery of the judgment in DPP v Kelly, supra.
This court has verified that, in the case of DPP v Kelly, supra., the legal submissions filed both on behalf of the Appellant and on behalf of the Respondent relied, inter alia, on the Convention and on the case law of the European Court of Human Rights, in particular cases relating to Article 6 thereof. The scrutiny of this case law, as found in the judgment of Fennelly, J. is, having regard to all of the foregoing, a cogent analysis upon which this court was fully entitled to rely in coming to its view as to whether the Applicant had raised grounds sufficient for the purposes of persuading this court to grant him leave to appeal.
The issue which now arises for consideration is whether the question now posed should be referred to the Supreme Court on the basis that the decision involves a point of law of exceptional public importance, and whether it is desirable in the public interest that an appeal should be taken to the Supreme Court, given that the purpose of the S.29 is essentially appellate in nature and is for the purpose of doing justice to an accused in a particular case.
In this application, it is not submitted on behalf of the applicant that the correct position in law under the Convention, or pursuant to the case law of the European Court of Human Rights, is different to that set forth in the judgment of Fennelly, J. Nor is it contended that his analysis is in any way flawed in its interpretation of the case law of that Court invoked or cited. Nor is it suggested that there is relevant case law which would in any way undermine the analysis made, or the findings in his judgment arising from that analysis. Nor, finally, is it submitted that the fundamental guarantee to life assured by Article 2 of the Convention, being the basis, inter alia, upon which the claim to privilege was invoked by the garda witness in the course of the trial, is, according to any case law of the European Court of Human Rights, to be subsumed in all circumstances to the right in an accused to cross-examine a witness in accordance with the protections accorded by Article 6 of the Convention, and indeed this is accepted by counsel for the applicant.
What is argued on behalf of the applicant is that the question which now arises is not one actually considered in the analysis found in the judgment of Fennelly J. On the question proposed, the basic argument is as follows. The State, through the prosecutor, is obliged to ensure that all trials, including that in the present case, are in all respects fully compliant with the provisions of Article 6 of the Convention, or at the very least, not in conflict with the guarantees found therein. There is no dispute on this point by the Director of Public Prosecutions. Counsel for the applicant argues however that the viewing and consideration of the material in question by the trial court in the present case is not in compliance with Article 6 for the reasons set forth above. No particular mechanism is proposed on behalf of the applicant as being a mechanism which would comply with Article 6, and on the contrary it is submitted that it is for the prosecution to adopt a mechanism which is in conformity with that Article. In the present case it is contended that the viewing and consideration of the material is wholly non conforming with Article 6, in particular because that material is or could be determinative of the guilt or innocence of the applicant as accused. It is submitted that, for the reasons argued, this material must either be withdrawn by the prosecution or shown to the accused or to his legal advisers.
This court is not satisfied that the applicant’s arguments are supported by the jurisprudence of the European Court of Human Rights, or by the case law relied upon by the applicant himself. In Rowe v United Kingdom, 30 EHRR 1, the court held that there had been a breach of Article 6 of the Convention. However, tellingly, the court found, inter alia, (a) that the entitlement to disclosure of relevant evidence is not an absolute right, and that in any criminal proceedings, there may be competing interests, such as national security or the need to protect witnesses at risk of reprisal, which must be weighed against the rights of the accused; (b) in cases where evidence is withheld from the defence in the above circumstances, it is not the role of the European Court of Human Rights to decide whether or not such non-disclosure was strictly necessary. Instead the Court’s role is to ascertain whether the decision -making procedure or process which was applied, did comply, as far as possible, with the requirements of adversarial proceedings; (c) that in the Rowe cases, there was a failure by the prosecution to lay the evidence in question before the trial judge to permit him to rule on the question of disclosure and this deprived the applicant of a fair trial; and (d) the particular facts in that case differentiated it from the case of Edwards v United Kingdom 15 EHRR 417. (emphasis added). Therefore, this case does not suggest that the procedure adopted by the trial judges of receiving and considering documentary material is contrary to or not in compliance with Article 6 of the Convention.
The next case invoked is Jasper v United Kingdom, 30 EHRR 441. In that case, the principles set out at (a) and (b) in Rowe v United Kingdom supra., are repeated. Further the court found that the fact that the need for disclosure was at all times under assessment by the trial judge provided a further important safeguard, in that it was the judge’s duty to monitor throughout the trial the fairness or otherwise of the withholding of the evidence. It recognized that the trial judge held a supervisory role in determining the balance between the competing rights of the defence and of public interest immunity in that case. The court found that there had been no breach of the provisions of Article 6 of the Convention by the failure to disclose to the defence certain material in the hands of the prosecution, and distinguished the case from the situation where the executive made the decision not to disclose and there was no overriding control by the courts of that decision. (emphasis added). The principles enunciated in that case do not support the applicant’s contention that the receipt and consideration by the trial judges of the material in question was, in the present case, in breach of Article 6, and the decision is, in reality, to the contrary.
The decision of the European Court of Human Rights in the case of Edwards v United Kingdom, supra., was also invoked on behalf of the application. This is a decision delivered in 1992, which turned very much on the peculiarities of the case. It does not bring the matter further.
Although the applicant invokes the House of Lords decision in R v H & Ors, [2004] 2 AC., which refers in detail, inter alia, to decisions of the European Court of Human Rights, that case concerned only a very narrow issue, namely whether the decision to appoint a special counsel was prematurely made by the trial judge, and that court found that it had been so made. The House of Lords recognized the basic principle, well established in the jurisprudence of the courts of this jurisdiction also, that, as a rule, disclosure of all relevant material is essential and mandatory. The judgment also recognized that the institutions and procedures established to ensure that a criminal trial is fair vary almost infinitely from one jurisdiction to another, the product of historical, cultural and legal traditions (of differing natures). Furthermore, specific reference was made to the acceptance by the European Court of Human Rights that some operations must be conducted secretly if they are to be conducted effectively, as in Klass v Federal Republic of Germany [1978] 2 EHRR 214. Particular recognition was given to the role of the European Court of Human Rights in supervising the procedures adopted by a national court to ensure the fairness of a criminal trial. Of particular assistance is the statement by the House of Lords at paragraph 33 of its decision that:
“It is entirely contrary to the trend of Strasbourg decision-making to hold that in a certain class of case or when a certain kind of decision has to be made a prescribed procedure must always be followed. The overriding requirement is that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone is to ascertain what justice requires in the circumstances of the particular case.”
This court considers that this statement of principle is one wholly apt to be employed in the present application when reviewing the issue as to whether there is a point of law of exceptional public importance which it is desirable in the public interest to refer to the Supreme Court for its opinion.
Finally, the court also considers it appropriate to cite the following finding of the House of Lords in its conclusion, namely, that:
“if material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good.”
It will be recalled that in the present case the defendants disclosed and adduced no specific or any positive defence. That of course is not a matter which should or can be held against the applicant, but it certainly does make the task of any trial judge assessing material from the point of view of a wholly silent or specific defence more difficult. Trial judges must nevertheless scrutinize the material with a view to seeing whether it might undermine the case of the prosecution or support or assist the defence in some way.
It is not necessary, in this court’s opinion, to consider individually, the other cases including one from the United States invoked on behalf of the applicant in any detail, as they do not add to the arguments propounded.
Having regard to the foregoing principles and statements, it is necessary to consider whether the procedure actually adopted by the trial judges in the present case, was such that it raises a legal question of exceptional public importance within the ambit of the Constitution and/or of the Convention, in light of the jurisprudence referred to. The three trial judges heard all the legal arguments invoked by the parties in the course of the trial on the question whether the information (whether in documentary or other form) should be disclosed to the defence, or whether, in the absence of such disclosure, the prosecution was obliged to withdraw the witness whose opinion was being tendered, and not be permitted to rely on his evidence. The trial judges considered that (a) if no enquiry whatsoever was made into the basis for the Chief Superintendent’s belief, there might be an imbalance in the trial in favour of the prosecution and an absence of “equality of arms” which could be interpreted as a lack of fairness insofar as the accused is concerned, and (b) that Article 6 of the Convention, as adopted into Irish law, augments the traditional rights of an accused person in the course of trial, in that it is now the law that one of the minimum rights vesting in an accused is to examine and have examined witnesses against him, including in the present case the right to have Chief Superintendent Kelly examined with regard to the basis for his belief. This Court does not make any findings on the correctness of these findings or observations, it not being necessary to do so in the present case. They formed a valid basis for the approach taken by the trial judges to the material in question.
While recognizing that informer privilege and state security are good grounds upon which a witness may not be compelled to disclose the identity of persons who are the sources of his belief or opinion, or when such disclosure would otherwise endanger state security, the trial judges considered that, in line with the requirements of Article 6 of the Convention, some enquiry should be made with regard to the basis for his belief, and having regard to the decision in the case of DPP v Special Criminal Court supra., the trial court determined that it was both entitled to and should review the documentation which the witness asserted was the basis for his belief, and should do so irrespective of the wishes of the defence.
It duly did so. It is the view of this court that such an approach to the task of ensuring a fair trial was within the ambit of the case law of the Supreme Court and also of the European Court of Human Rights. Indeed it was an approach clearly within the ambit of the case law of the latter court, which requires that the withholding of any such documentation must at all times remain within the supervisory control of judges themselves. The trial court, having considered the documentation, found that it constituted adequate and reliable information upon which the witness could legitimately form his opinion, and that there was nothing in any of the files which, in the view of the court, would assist the defence in proving the innocence of their clients, including the applicant. That conclusion was reached notwithstanding that no positive defence was put forward or disclosed by the applicant.
Counsel for the applicant submits that the first of these findings of the trial judges is an impermissible finding, as it constitutes a review of material which is or may be determinative of the guilt of the applicant. In the opinion of this Court, this is not a correct approach to or classification of the information or of the trial judges’ finding. The trial judges were here considering whether the Chief Superintendent’s evidence, which was belief or opinion evidence, should be admitted in the course of trial without cross-examination as to its source, once privilege, based on the safety of the life of others, was invoked. In weighing up the value of that belief evidence the trial judges had no regard, and stated that they had no regard, for the material which they had seen. As is clear from the decision in R v H & Ors, supra., material which does not damage the prosecution or assist the defence, does not have to be disclosed. It appears abundantly clear from the examination made by the trial judges that, in their opinion, and the correctness of this has not been challenged, there was no such material or information in the documentation examined. Undoubtedly, if the material examined had disclosed no basis or even a questionable basis for the belief evidence, this would have been a matter helpful to the defence or a matter undermining the prosecution and would have led to a different finding. Nor did the applicant seek to have this court examine or consider the documentation in question to ascertain whether, in the exercise of the above described process, the trial judges had misdirected themselves in respect of the documents, or the material contained therein.
Nor was the information “determinative” of the issue as was alleged by counsel on behalf of the applicant. On the contrary, even if there was information, the trial judges determined that they would not convict either the applicant or his co-accused, based only on the evidence of the Chief Superintendent, once admitted, but would convict only if that evidence was supported or corroborated by other evidence. It seems clear to this court that such an approach of not convicting on the basis of the Chief Superintendent’s evidence, still less on the basis of anything appearing in the documentation examined by the trial judges as part of their monitoring procedures, could not constitute the information in the documents as being in any way “determinative of the issue”, and was also the least possible interference with the applicant’s right to a fair trial.
Having regard to the foregoing findings, this court concludes that the applicant has not made out a case that its decision of the 26th November 2006 involves a point of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924.
The application is, in the circumstances, refused.

People (DPP) v Vincent Kelly

[2007] I.E.C.C.A. 110

Judgment of the Court delivered on the 6th day of December 2007 by Finnegan J.

The applicant was charged with an offence contrary to section 21 of the Offences Against the State Act 1939 as amended by section 2 of the Criminal Law Act 1976 of membership of an unlawful organisation. Particulars of the offence were that the applicant, on 7th June 2005, within the State was a member of an unlawful organisation, to wit an organisation styling itself the Irish Republican Army otherwise Óglaigh na hÉireann otherwise the IRA. He was convicted before the Special Criminal Court. Having applied to that court for a certificate that his case was a fit case to appeal, and such certificate having been refused, he now applies to this court for leave to appeal against said conviction and against the sentence of five years imposed upon him.
The applicant proposes to rely upon ten grounds of appeal as follows:-
1. The learned trial judges erred in fact and/or in law in accepting the evidence offered by Chief Superintendent Kelly, which was based on confidential information received, and formed the basis of a belief that the applicant was a member of an unlawful organisation styling itself the IRA.
2. The learned trial judges erred in fact and/or in law in failing to enquire adequately or at all into the origins of the confidential information relied upon by Chief Superintendent Kelly to base his belief that the applicant was a member of an unlawful organisation styling itself the IRA.
3. The learned trial judges failed to explain in their judgment the process in which they engaged whereby they decided to rely upon the belief of the Chief Superintendent to convict the applicant in circumstances where the Chief Superintendent claimed privilege over the origins of his confidential information.
4. The learned judges erred in deciding to rely upon the evidence of belief offered by the Chief Superintendent without explaining the weight they attached to the evidence of the Chief Superintendent, in view of the antiquity of the belief and the claim to privilege made and attached to the evidence, which was used to convict the applicant.
5. The learned trial judges erred in law or in fact and/or in a mixture of law and fact in drawing adverse inferences, pursuant to section 2 of the Offences Against the State Act 1998, from the manner in which the applicant answered and/or refused and/or failed to answer questions material to membership of an unlawful organisation.
6. The learned trial judges erred in law or in fact and/or in a mixture of law and fact in failing to have any adequate regard to the standard of proof required in a criminal trial.
7. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in failing to distinguish those questions from which they drew an adverse inference pursuant to section 2 of the Offences Against the State Act 1998 and those questions from which the learned trial judges refused to draw an adverse inference.
8. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in finding that the circumstances of the applicant’s arrest were capable of corroborating the other evidence offered by the prosecution and support of the contention that the applicant was a member of an unlawful organisation and inconsistent with any other reasonable explanation.
9. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in finding that the presence of the applicant’s fingerprint on the inside of the rear or back of the van, was sufficient to connect the applicant to the material which was recovered from the back of the van, in circumstances where the applicant was only ever observed as a passenger in the van. The presence of the material in the back of the van was found by the learned trial judges to corroborate the belief of the Chief Superintendent.
10. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in failing to address in their judgment the submissions made by counsel for the applicant.

The applicant was arrested and charged with the offence in the following circumstances. On 7th June 2005 at about 10 p.m. three uniformed Gardaí were travelling in an unmarked car on Malahide Road, Dublin. While stopped at a pedestrian crossing where they could see into Marino Avenue they saw a man get into a black BMW motor car which had three other occupants. They followed the BMW which appeared to be travelling in company with a white Opel Astra estate van. The BMW and the Opel performed a U turn near Mount Temple School and shortly afterwards pulled into the side of the road. The applicant got out of the Opel and was standing at the footpath. The BMW moved towards him but then sped off. Garda Gilmartin approached the Opel while his two colleagues in the unmarked patrol car activated their blue light and pursued the BMW into an adjoining street where they stopped it. Garda Gilmartin asked the applicant to get back into the Opel which he did but at the same time the driver opened the rear door of the same and a man who was in the rear of the same got out, ran across the road, climbed the railings to Mount Temple School and escaped. Pursuant to section 23(1) (A) of the Misuse of Drugs Act 1977 the Opel was taken to a Garda Station to be searched. The following items were found in the van: a small canister of “mace” in the driver’s door, in the rear two balaclavas, a pair of black woollen gloves, a handgun and another black woollen glove. The handgun was partially concealed under the black woollen glove, these items being at the partition that separates the front and rear of the van and between the driver’s and passengers seats. The applicant was arrested where the Opel was stopped also pursuant to section 23 of the 1977 Act. At 11.45 p.m. he was released from this detention and arrested under section 30 of the Offences Against the State Act 1939 on suspicion of having committed a scheduled offence, being an offence of possession of a firearm. In the course of his detention three interviews were conducted under the terms of the Offences Against the State (Amendment) Act 1998 section 2.
In the course of his detention the applicant’s clothing was removed for forensic examination. Underneath his outer garment he was wearing a t-shirt which had emblazoned on it “Óglaigh na hÉireann” together with an image of a number of men in combat gear wearing balaclavas apparently discharging weapons into the air. Underneath the image was the legend “unbowed and unbroken”. On a forensic examination of the Opel the applicant’s fingerprint was found on the inside of the back of van.
The grounds of appeal can be grouped together as follows:-
(a) Grounds one to four inclusive relate to the evidence of belief of Chief Superintendent Philip Kelly.
(b) Grounds five and seven relate to the applicant’s interviews conducted pursuant to the Offences Against the State (Amendment) Act 1998 section 2.
(c) Ground six relates to the standard of proof applied by the trial court.
(d) Grounds eight and nine relate to the fingerprint evidence and material found in the van.
(e) Ground ten concerns the alleged failure of the court to consider a submission by counsel on behalf of the applicant relying on the European Convention on Human Rights and Fundamental Freedoms Article 6(1) and Article 6(3)(d).

Grounds 1 to 4 inclusive
The Offences Against the State (Amendment) Act 1972 section 3(2) provides as follows:-
“Where an officer of the Garda Siochana, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.”

Detective Chief Superintendent Philip Kelly gave evidence of his belief that the applicant was a member of an unlawful organisation, the Irish Republican Army, otherwise known as Óglaigh na hÉireann, otherwise known as the IRA on 7th June 2005. The belief was not based on any conduct of the applicant which led to his arrest for this offence nor was it based on the refusal of the applicant to answer questions when questioned pursuant to the Offences Against the State (Amendment) Act 1998 section 2. The witness was cross-examined and the witness said that he had formed the opinion approximately six years before the 7th June 2005 and that the belief continued from that date and still continued after that date. He did not communicate the basis of his belief to the Director of Public Prosecutions. His belief was based on confidential information available to him in respect of which he claimed privilege as, if he disclosed the information, it would damage ongoing security operations against the IRA and would endanger life. Part of the information was in the form of documents and contained in a file. The witness offered to produce the documentation in his possession should the court wish to peruse the same.
The applicant’s submissions on these grounds were confined to this – there is no guide in law to assist the Special Criminal Court in determining the weight to be attributed to evidence of belief where no information is available to the court as to the source or sources of the information which grounds that belief.
Significant in this case is that Chief Superintendent Kelly offered to make the documents in his possession, which in part at least formed the basis of his belief, available to the court: the applicant chose not to avail of this offer. The People (Director of Public Prosecutions) v Kelly [2006] 3 IR 115 dealt with the issue of the weight to be given to belief evidence. Geoghegan J. dealt with the issue as follows:-
“It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone. In my view, that practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone. Equally commendable is the practice of the Director of Public Prosecutions of which the court has been informed, not to initiate a prosecution based solely on the belief evidence. These self imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial. In this case there was plenty of outside evidence and it was well within the discretion of the Special Criminal Court to convict the accused for the reasons given by the Court of Criminal Appeal. It is not necessary to cover that ground again.

Reference should, however, be made to a relatively recent decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Mulligan (Unreported Court of Criminal Appeal 17th May 2004) where Keane C.J., who sat with Lavan and O’Leary JJ. rejected a submission that no weight could be attached to ‘the bare belief’ of a Chief Superintendent. A similar conclusion had already been reached in another judgment of the same court delivered by Keane C.J. in The People (Director of Prosecutions) v Redmond (Unreported Court of Criminal Appeal 24th February 2004).
I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the conflicting rights and interests can only be determined by the court of trial. The Chief Superintendent’s belief has no special status but is merely a piece of admissible evidence. As the Court of Criminal Appeal pointed out, although the Special Criminal Court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account the fact that the accused made a false statement to the Gardaí and the other corroborating evidence of other witnesses particularly the evidence of Mr. David Mooney which was accepted”.

In his judgment Fennelly J. stated the issue on the appeal was whether the fact that an accused person, who is prepared to give evidence denying membership of an unlawful organisation, is denied the right to cross-examine the Chief Superintendent as to the sources of his belief has had a fair trial. In the course of his judgment Fennelly J. conducted an extensive review of authorities not just in this jurisdiction but also in the Supreme Court of the United States and the European Court of Human Rights. In the context of an accused’s right to cross examine and access to confidential information being denied to him he had this to say:-
“I return to the particular circumstances of the present case. It is of crucial importance that there was quite extensive evidence, other than the evidence of the Chief Superintendent, which convinced the Special Criminal Court that the accused was a member of the IRA on the relevant date. The court said that it took into account the fact that the Chief Superintendent had claimed privilege. It did not on the other hand, explain this remark any further. The court should, in my view, have explained the weight, if any which it attached to the evidence of the Chief Superintendent, in view of the claim to privilege. However in the particular circumstances of this trial, I do not think that there was any overall unfairness … the matter might be quite different in a case where the evidence of the Chief Superintendent was the sole plank in the prosecution case, where privilege had been successfully claimed and the accused had given evidence denying the charge”.

As to the weight to be given to belief evidence the Report of the Committee to Review the Offences Against the State Act 1939–1998 at p.123 states:-
“The effect of section 3(2) was neutralised in the wake of Ferguson, where, in practice, the Special Criminal Court acquitted the defendant who had denied membership where the Chief Superintendent’s opinion represented the only prosecution evidence. The Special Criminal Court also tended to acquit where the Chief Superintendent claimed privilege in respect of the sources of his belief. But section 21 convictions were secured in cases where membership had been denied on oath by the accused, even where the other supporting evidence might be regarded as equivocal”.

In O’Leary v The Attorney General [1993] 1 I.R. 102 it was submitted to the court that the effect of section 3(2) of the Act of 1972 was to shift the burden of proof to an accused person and require him to establish, once the evidence of belief is adduced, that he is not a member of an unlawful organisation thus denying him of the presumption of innocence. Costello J. at p.112 giving judgment said –
“I fail to see how this section affects in any way the plaintiff’s right to enjoy the presumption of innocence. What this section does is to make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible. The statement of belief if proffered at the trial becomes ‘evidence’ by virtue of this section in the prosecution case against the accused. Like other evidence it has to be weighed and considered and the section cannot be construed as meaning that the court of trial must convict the accused in the absence of exculpatory evidence. The accused need not give evidence, and he may ask the court to hold that the evidence does not establish beyond a reasonable doubt that he is a member of an unlawful organisation. Should the court agree he must be acquitted.”

In The People (Director of Public Prosecutions) v Ferguson (unreported Court of Criminal Appeal 27th October 1975) the court said:-
“The subsection does not give any indication as to the weight to be attached to the belief of the Chief Superintendent, nor does it in any way comment on the position in the event that there is no challenge to his belief. It is simply one piece of evidence which is admitted, and must be considered having regard to all the other admissible evidence. This does not in anyway affect the right of the applicant not to give evidence, or the principle that a decision not to give evidence is not a factor to be taken into account against an accused person.

The fact remains that this was the only substantive evidence either for or against the guilt of the accused, and that this evidence was not challenged. The court does not accept that the entry of a plea of not guilty in some way challenged the evidence to be subsequently given, nor does the court accept the failure of the Chief Superintendent to state the basis of his belief affected the validity of the evidence. It was always open to the applicant to cross- examine the Chief Superintendent as to the basis of his belief, but in the absence of such cross-examination the court was left with only unchallenged evidence”.

In The People (Director of Public Prosecutions) v Redmond (unreported Court of Criminal Appeal 24th February 2004) the court held that the weight to be given to the evidence of the Chief Superintendent is entirely a matter for the court of trial.
Again in the course of The People (Director of Public Prosecutions) v Kelly at pp.134/135 Fennelly J. said:-
“A person may be convicted on the evidence of a chief superintendent alone. Where the chief superintendent is not cross-examined at all and still less questioned as to the sources of his belief, and where no other basis is laid for questioning the truth or cogency of his evidence, it is difficult to envisage any court deciding to acquit … put otherwise, a court of trial is entitled to assume that an officer of the rank of chief superintendent will give evidence of his belief that an accused person is a member of an unlawful organisation only when he is satisfied himself of this fact beyond reasonable doubt. Hence even when that is only evidence, a court is entitled to act on it, in the absence of some challenge or question sufficient to raise such a doubt”.

The view expressed by Fennelly J. in The People (Director of Public Prosecutions) v Kelly that the court should have explained the weight, if any, which it attached to the evidence of the Chief Superintendent in view of the claim to privilege should be considered in the light of the foregoing. It would be particularly appropriate that the court should explain the weight which attaches to the evidence of belief where the only evidence relied upon by the prosecution is belief evidence and there is a denial on oath. Where as, in the present case, there is no denial on oath and there is other evidence to support the prosecution case, the evidence of belief is one ingredient in the prosecution’s case. The function of the court of trial is to weigh the cumulative evidence including the evidence of belief and the denial on oath if any. That is what the court did in this case in relation to the evidence of the Chief Superintendent and that evidence was accepted as correct and accurate. The court noted the following circumstances in relation to the evidence:-
(i) The belief was not associated with any of the events relating to matters which occurred on the date of arrest.
(ii) The belief was not associated with any actions or admissions made by the accused at that time.
(iii) The belief was not based on the questioning pursuant to section 2 of the Offences Against the State (Amendment) Act 1998.
(iv) The court had regard to the Chief Superintendent’s evidence that he had held this view for some five or six years.
(v) The court had regard to the experience of the Chief Superintendent.
(vi) The court had regard to the demeanour of the Chief Superintendent in the witness box and the manner in which he responded in cross-examination.
(vii) The court had regard to other circumstances which it considered as corroborating the Chief Superintendent’s evidence and in particular answers to questions put to the accused under section 2 of the 1998 Act, the items found in the Opel motor van and the accused’s fingerprint on the inside of the van.
(viii) In addition, although not mentioned in the judgment of the court there was the evidence of the garment the accused was wearing described above and which would amount to corroboration of the Chief Superintendent’s evidence.

This court is satisfied that in the circumstances of this case the court of trial was entitled to accept the evidence of the Chief Superintendent and to weigh and consider the same together with the evidence as a whole and to reach a conclusion. The Act does not require that any special status should be given to the belief evidence and it is simply a piece of evidence to be weighed and considered by the court of trial in conjunction with the other evidence where by itself it is insufficient to lead to a conviction. It is open to that court to consider the belief evidence in conjunction with other admissible evidence. This court is satisfied that Fennelly J. in his comments quoted above did not intend to require the court of trial to express the weight it attaches to belief evidence in the form of a mathematical notation or other scale of values but rather that weight should be attributed to the same where there is countervailing evidence such as a denial on oath. It was not necessary, in the circumstances of this case, to attribute weight to any particular ingredient in the evidence the cumulative effect of which led to the applicant’s conviction.

Grounds 5 and 7
The Offences Against the State (Amendment) Act 1998 section 2 provides as follows:-
“2(1) Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Siochána in relation to the offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.
(2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be.
(3) Nothing in the section shall, in any proceedings –
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could be properly drawn apart from this section.
(4) In this section –
(a) references to any question material to the investigation include references to any question requesting the accused to give a full account of his or her movements, actions, activities or associations during any specified period,
(b) references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly.”
No issue arises on the appeal as to compliance with the formal requirements of section 2. The applicant’s first interview was dealt with in evidence by Detective Garda John Barrett. In relation to questions directly enquiring as to whether or not he was a member of an illegal organisation, the applicant replied denying membership. In relation to all other questions material to the investigation he made no reply. He was asked as to who was the driver of the van, if the driver was one Maurice McDermott, how long he had known Maurice McDermott, what reason he and Maurice McDermott had for being on the Malahide Road on the occasion, who owned the Opel van, who was the third person in the van and to all these questions he made no reply. He was asked:
“I put it to you Vincent that you had this gun in your possession for the purpose of carrying out an operation on behalf of the IRA otherwise Óglaigh na hÉireann, otherwise the Irish Republican Army. Have you anything to say to this?”

He made no reply. He was asked who supplied him with the gun and ammunition and when he received the same and again made no reply. He made no reply to questions about the balaclava, the woollen gloves or the canister of mace. He was asked whether the items found in the van belonged to Maurice McDermott or the third person in the van and again made no reply.
Evidence of the second interview was given by Detective Sergeant Donal Prenty. Again there was no issue as to compliance with the formal requirements of section 2 of the 1998 Act. In answer to questions he denied membership of an unlawful organisation. In relation to questions as to the third person in the van he made no answer. He was asked did he know the driver of the van and again made no answer.
A third interview was also conducted by Detective Sergeant Prenty and again there was no issue as to compliance with the formal requirements of section 2 of the 1998 Act. He was asked why he had the canister of mace in his possession, where did he get it and what was its intended use and made no answer. He did not answer questions regarding the role of Maurice McDermott in the events of the evening. He made no answer to questions in relation to the items found in the van. He did not reply to questions as to who were the occupants of the BMW motor car and whether he knew them. The name of the driver of the BMW motor car was put to him and he was asked did he know him and he made no reply. The names of the passengers in the BMW motor car were put to him and he was asked if he knew them but made no reply. He was asked if he had any innocent explanations for his activities on the night he was arrested and made no reply.
All the questions mentioned were material to the investigation of the offence with which the applicant was charged and he failed to answer them. There were a great many other questions asked to which he did not reply and which to a lesser extent were relevant to the investigation but relevant nonetheless.
The court of trial found that the accused failed to answer a large number of material questions.
The submission on behalf of the applicant is that the court failed to distinguish between questions which were material and other questions put to the applicant in the course of these interviews. Further the court referred to two interviews only, that is the first and second interviews, in the judgment.
This court is satisfied that the accused having failed to answer virtually all the questions put to him in the course of the interviews and which questions were material to the investigation the court of trial was entitled to have regard to his failure to answer for the purposes of section 2 of the Act of 1998. In the circumstances of this case it was unnecessary to identify the particular questions which the court considered as material questions were clearly asked and were not answered. Different considerations might well apply where answers were given to some material questions but not others and it might then be appropriate for the court to identify which answers amounted to a failure to answer or which answers were false or misleading: however that is not the case here.

Ground 6
Having outlined the facts and its findings on the evidence the court concluded its judgment as follows:-
“Having regard to these facts the court is satisfied that the case has been proved and that the accused is guilty as charged.”

On behalf of the applicant it is submitted that nowhere in the judgment is there a reference to that to “that most basic of criminal law concepts: proof of guilt beyond a reasonable doubt.” This court is satisfied that had a jury been charged in those terms, assuming that nothing else was said in the course of the charge as to the burden of proof, the conviction would be held to be unsafe. However this is not the situation here. The court consisted of three judges each experienced in criminal law. It is unthinkable that they were not aware of “that most basic of criminal law concepts” or that they would have misdirected themselves and failed to apply that concept in the present case. This court is satisfied that in finding the accused guilty as charged the correct standard of proof was applied. Notwithstanding the erroneous use of “satisfied” the court did not intend to convey that it had reached the conclusion on guilt otherwise than on the correct legal standard of beyond a reasonable doubt. The omission to recite the appropriate standard could be no more than an oversight.

Grounds 8 and 9
In the course of its judgment the court of trial had this to say:-
“The court further finds that the items which were discovered and found in the motor van, Opel Astra, registration number 00 LS 3880, namely, a Taurus pistol, a balaclava, two pairs of black gloves and a CS canister of gas are items which taken together can be taken as corroborative of the Chief Superintendent’s belief. The court is satisfied that having regard to the finding of the fingerprints of the accused on the inside of the back of the van, though he was a passenger in front of the van, he had access to the back of the van.”

It was virtually conceded by counsel for the prosecution at the hearing that, while the applicant was in a van which contained the firearm and other items which influenced the court of trial, the evidence available would not have been sufficient to procure a conviction for possession of the firearm. The applicant’s submission in short is that in this context the circumstances in which the applicant was arrested ought not to have been taken into account as part of the matrix of facts justifying the conviction of the applicant. Further there was no evidence of a temporal relationship between the existence of the applicant’s fingerprint and the presence of the firearm and other items in the van. In addition no fingerprints were found on either the firearm or the gas canister associating the same to the applicant. For these reasons, it was submitted, the court of trial was in error in finding that the mere presence of the applicant in proximity to incriminating items was incapable of amounting to corroboration of other evidence.
In the People (Director of Public Prosecutions v Kelly) at p 130 Fennelly J said:-
“It is obvious from the definition of an unlawful organisation and from common sense that such organisations are, in their nature, secret and violent. It follows that it will be extremely difficult to produce direct evidence capable of sustaining a prosecution.”

The respondent’s submission on these grounds is as follows. Whilst the benefit of the doubt must be given by the court in circumstances where a piece of evidence gives rise to two potential inferences, this ignores the cumulative effect of circumstantial evidence. Where circumstantial evidence is a feature it is, of course, possible to isolate each piece of evidence and suggest a plausible innocent explanation. The court is not, however, required to be blind to the cumulative implausibility of innocence as an explanation for the evidence. In the People (Director of Public Prosecutions) v Cahill and Costello [2001] 3 I.R. 494 Keane C.J. cited with approval a passage from R v Exall [1866] 4 F&F 922 at p.929:-
“There may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but…taken together may create a conclusion of guilt…with as much certainty as human affairs can require or admit of.”

The court is satisfied that each of the circumstances surrounding the applicant’s arrest considered in isolation, whilst of themselves not capable of leading to a conviction, nonetheless form part of a matrix of facts to which the court was entitled to have regard together with other evidence and all of which taken together would be sufficient for a jury properly directed to convict.

Ground 5
It was submitted to the Special Criminal Court on behalf of the applicant that the applicant’s rights under the European Convention on Human Rights and Fundamental Freedom, Article 6.1 and 6.3(a) and (b) were infringed by reason of the admission of evidence of the belief of the Chief Superintendent. The decisions of the European Court of Human Rights in Kostovski v Netherlands [1989] 12 EHRR 434 and Doorson v Netherlands [1996] 22 E.H.R. 330 were relied upon. Both these decisions were considered in detail in the People (Director of Public Prosecutions) v Kelly. In the course of his judgment Fennelly J. said:-
“I believe that the claim of privilege made by the Chief Superintendent constituted an undoubted infringement of the normal right of the accused to have access to the material which underlay the belief expressed. To that extent, it constituted a restriction on the effectiveness of the right of the accused to cross-examine his two accusers and it had, for that reason, the potential for unfairness.

On the other hand, counsel for the prosecutor has pointed to a number of compelling circumstances to justify the course of action which has been adopted. Firstly, the exceptional resort to the evidence of the Chief Superintendent applies only in the case of organisations which, in their nature, represent a threat, not only to the institutions of the State, but to individuals who are prepared quite properly to cooperate with the State in securing the conviction of members of such organisations. This makes it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers. Secondly, the legislature has allowed such evidence to be given by members of An Garda Siochána of particularly high rank, who can be presumed to have been chosen for having high standards of integrity. Thirdly, the procedure applies only while there is in force a declaration that ‘the ordinary courts are inadequate to secure the effective administration of justice’. The offence is a scheduled one; thus the cases will be heard only by the Special Criminal Court, a court now composed of judges who must be presumed to apply only the highest standard of fairness. I also agree with Geoghegan J. that it is relevant that the section enjoys a presumption of constitutionality. Any restriction on the right to cross-examine, which it implies, must be limited to the extent that it is strictly necessary to achieve its clear objectives. I believe that the circumstances I have mentioned constitute sufficient justification for its introduction, while, at the same time, demonstrating a concern to respect such necessary limitations.”

Counsel for the applicant quite properly referred the Special Criminal Court to the decision of the Supreme Court in The People (Director of Public Prosecutions) v Martin Kelly. This court is satisfied that the issue raised on the European Convention on Human Rights and Fundamental Freedoms had been determined by the Supreme Court in that case and that its decision was binding on the Special Criminal Court. In these circumstances, while the judgment of the Special Criminal Court is silent on this issue, it is quite clear that it would not have been open to that court to uphold the submission. As with the Special Criminal Court, this court is bound by the decision of the Supreme Court in The People (Director of Public Prosecutions) v Kelly.

Conclusion
Having regard to the foregoing the application for leave to appeal is refused.

 

The People (Director of Public Prosecutions) v Christopher Quilligan and Patrick O’Reilly

1985 No. 367

Central Criminal Court

Supreme Court

6 December 1985

25 July 1986

[1987] I.L.R.M. 606
(Barr J)

(Walsh, Henchy, Griffin, Hederman and McCarthy JJ)

BARR J delivered his judgment on 6 December 1985 saying: A preliminary issue has been raised on behalf of the two accused, Christopher Quilligan and Patrick O’Reilly, in course of their trial for the murder of James Willis on the night of 19/20 November, 1984 at his dwellinghouse in a remote rural situation at Ballycurreen, Glaunthane, Co. Cork. Both accused reside at separate addresses in the city of Cork. On the morning of 12 December 1984 Detective Sergeant James Cloonan with other Garda Officers called to the home of the accused, Quilligan, and arrested him under s. 30 of the Offences against the State Act, 1939 (the 1939 Act) on suspicion of having committed a scheduled offence, viz malicious damage at the home of James and John Willis at Ballycurreen on 19/20 November 1984. On the same date and at or about the same time (9 a.m.) D. Sergeant Patrick Brennan with other Gardaí called to the home of the accused, O’Reilly, and arrested him under the same statutory provision and for the same stated reason. The arresting officers brought the respective accused to the Bridewell Garda Station in Cork where each was detained and interrogated by garda officers about the death of James Willis, the assault and battery of the deceased’s brother, John, and other related matters which had occurred on the night of James’s death. It is alleged that while in detention each of the accused made written statements admitting participation in events which had taken place in the Willis home on the night in question. The successful prosecution of the two accused for the murder of James Willis depends upon proof of and the admission of these statements into evidence.

Counsel on behalf of each of the accused has argued that the purported arrests made under s. 30 of the 1939 Act are unlawful; that in the premises the two accused were in unlawful custody when the alleged incriminating statements were made and, therefore, having regard to the decision of the Court of Criminal Appeal in The People v Madden [1977] IR 336, such statements, even if made voluntarily, are not admissible in evidence. This question raises an issue of law for my determination. All relevant evidence has been led. The following facts have been established in evidence and are not in controversy:

(a) On the night of 19/20 November 1984 the home of James and John Willis, elderly semi-retired farmers, at Ballycurreen, Glaunthane, was broken into by three men for the purpose of robbery.

(b) The raiders gained entry to the house by bursting the receiver of the Yale type lock on the front door and by damaging a bolt on the back door.

(c) The Willis brothers, particularly James, endeavoured to defend themselves. Both were severely assaulted. James received 82 superficial injuries to various parts of his body and 9 of his ribs were fractured. He was 78 years of age at the time. After the raiders had left, having stolen the Willis’s car from their yard, John discovered his brother James in a collapsed condition in the hall of the house and apparently dead. Death was confirmed about an hour afterwards by a doctor who had been called to the scene. Later, a post-morten examination was carried out and it was confirmed by the State Pathologist, Professor Harbison, that the death of James Willis resulted from heart failure caused by multiple rib fractures; the accumulative effect of many superficial injuries and shock. The pre-existing state of the deceased’s lungs and heart were contributory factors. Prior to the assault the victim had been in reasonably good health having regard to his advanced age.

(d) In addition to the minor damage done in gaining entry to the house, the raiders also damaged a few items of furniture in course of the struggle with the Willis brothers and the ransacking of the house in search of cash and other valuables. They also damaged a shotgun which belonged to one of the brothers.

(e) A full scale murder investigation was put in train by Superintendent McGrath within two or three hours from the death of Mr Willis. Detective Sergeants Cloonan and Brennan were senior members of the investigating team. Conferences presided over by Superintendent McGrath and attended by the investigating officers were held from time to time during the investigation at which all relevant information, including that as to suspects, was pooled.

(f) From the beginning of the investigation the police suspected both accused and others of possible complicity in the crimes committed at the Willis home because it was believed that they were the sort of men who were likely to engage in that type of crime. They were each interviewed on 20 November, the day following the murder, but each then denied participation in or knowledge of such crimes.

(g) It was conceded by Superintendent McGrath in evidence that at the time he directed that each of the accused was to be arrested under s. 30 of the 1939 Act the police had insufficient evidence to justify charging either of them with any of the offences committed at the Willis house on 19/20 November, 1984 and that it was necessary to interrogate each of them if there was to be any hope of establishing a case against either. Forensic investigations had yielded little in the way of helpful results.

(h) The Superintendent also frankly conceded in evidence that although malicious damage at the Willis house was no more than a minor part of the totality of crime committed there, nonetheless, he felt justified in directing a s. 30 arrest based upon the suspicion that each accused had committed a scheduled offence (i.e. malicious damage) on the night in question and that having so arrested the two accused, he believed that his officers were then lawfully entitled to interrogate each of them during the period of detention authorised by the section on all of the crimes committed at the Willis home and other related events.

In the light of these facts and bearing in mind that the integrity and competence of the arresting officers was not challenged on behalf of either accused, I was satisfied that each officer had a bona fide suspicion when making their respective arrests that the two accused may have been involved in malicious damage at the Willis home on the night of James’s murder. There remained then two further issues for determination, i.e.:

(i) Whether, notwithstanding the validity of the suspicions held by the arresting officers, they were entitled to resort to a s. 30 arrest, the primary purpose of which was to provide for the interrogation of the two accused in respect of a non-scheduled offence (i.e. the murder of James Willis) the gravity of which dwarfed into insignificance the minor malicious damage element in the transaction and

(ii) As the offences committed at the Willis home on the night of 19/20 November, 1984 were not alleged to have been committed by or on behalf of any unlawful organisation within the meaning of s. 18 of the 1939 Act, or by a member of any such organisation, was it lawful to arrest, detain and interrogate the two accused under s. 30 of that Act?

As to the first question; it was argued by counsel on behalf of the two accused that s. 30, being part of a penal statute, must be strictly construed; that when the totality of events at the Willis house on the night of James Willis’s murder are reviewed it emerges clearly that the malicious damage element is no more than a peripheral appendage to the centre-piece of the transaction, namely, the murder of the deceased; that it was at all material times so regarded by the investigating police officers who have not yet charged either accused with any related malicious damage offence; that in reality the s. 30 arrest was not related to any malicious damage offence at the Willis house but was, as conceded by Superintendent McGrath, a vital part of the murder investigation; therefore, it was no more than a colourable device to provide an opportunity for the investigating officers to interrogate the two accused in custody as to the totality of events at the Willis’s house on the night when James Willis was murdered.

The unreported judgment of the then President of the High Court, now Finlay CJ in The State (Bowes) v Fitzpatrick High Court 1 November 1978 was relied on in support of these submissions. In that case the prosecutor had been arrested under s. 30 of the 1939 Act on suspicion of having committed a scheduled offence, namely, malicious damage to a knife allegedly used by him to murder the victim in the case, such damage having been caused by the nature of the blow. While the prosecutor was in detention after arrest an application was made on his behalf to the learned President for an Order of habeas corpus directing his release from custody on the ground that, having regard to the nature and cause of the malicious damage alleged and that the substantive crime was murder, the purported arrest under s. 30 based solely upon the alleged scheduled offence of malicious damage to the murder weapon, was unlawful. The learned President held that, having regard to the very technical nature of the malicious damage offence involved, and bearing in mind the inevitability of damage to the murder weapon having regard to the circumstances of the killing, arrest under s. 30 based upon malicious damge to the knife was not lawful and he directed the immediate release of the prosecutor from detention. In course of his judgment the President also referred to an earlier decision of the Court of Criminal Appeal of which he was a member in The People v Towson. It appears that it was an ex tempore judgment of which there is no written record other than reference to it in Bowes. In Towson the accused had been arrested under s. 2 of the Emergency Powers Act 1976 on suspicion of having committed an offence under the Firearms Acts, namely, possession of a firearm with intent to endanger life. This is a scheduled offence under the 1939 Act but the other crime with which the accused was charged, i.e., murder arising out of the same facts is not a scheduled offence. It appears that Towson was indicted with and convicted of both offences. It was argued in the Court of Criminal Appeal that his arrest was unlawful because its real purpose was to provide an opportunity for the interrogation of the accused in respect of the non-scheduled crime of murder. It was held by the Court that although both offences arose out of the same occasion, they were each serious, substantive and grave offences and the experience of the Courts would indicate that in all probability the accused would be charged with both of them—as indeed was the case. Accordingly, the s. 2 arrest based upon the arresting officer’s suspicion that the accused had committed the scheduled firearms offence was held to be lawful.

It is evident that Bowes and Towson represent either extremity of the spectrum of s. 30 arrests where the scheduled offence relied upon is not the crime primarily under investigation. The test which emerges from a consideration of these judgments would appear to be whether the scheduled offence relied upon as the basis for the s. 30 arrest is so completely bound up with the primary crime under investigation (being a non-scheduled offence) that it cannot be regarded realistically as constituting an independent crime which ought to be regarded as having a separate existence.

Applying that test in the case under review I am satisfied that although the nature, extent and value of the malicious damage done at the Willis house on the night of 19/20 November 1984 was comparatively small and the gravity of that crime is far outweighed by others committed by the same persons on the same occasion, notably the murder of James Willis and the grievous assault on his brother, John, nonetheless it constitutes an independent crime and it is not so inextricably bound up with any of the other crimes committed on the same occasion that, in practical terms, it ought not to be regarded as having an independent existence.

In my view it is a wrong approach to this problem to consider first the totality of crimes committed at the Willis home and then to measure the relative significance of the malicious damage offence by comparison with the other crimes comprised in the total. If one were to conclude that the s. 30 arrests were unlawful merely because the malicious damage element in the totality of crimes committed was insignificant then at least one absurd result would seem to follow. It is this: if in the present case the facts were that at the time when the raiders burst into the Willis house and ransacked it both brothers were visiting friends and there was no one at home; and if nothing of value was taken from the house because nothing of interest to the raiders was found, it would follow that the malicious damage offence would loom large among the much reduced number of crimes actually committed. In such circumstances the facts would seem to be closely analogous to those in Towson and it would follow, therefore that a s. 30 arrest based on malicious damage would be lawful notwithstanding that other non-scheduled crimes such as ‘breaking and entering’ were committed also. I have no doubt that in the latter circumstances the police would be entitled to and, indeed, ought to regard the ransacking of the home of citizens and the malicious damage 66 property therein as itself a serious crime requiring rigorous investigation using all means lawfully open to them.

If I am correct in holding that in the foregoing hypothetical circumstances a s. 30 arrest based on malicious damage would be lawful notwithstanding the commission of other non-scheduled offences on the same occasion, then it would be patently unreal to hold that the introduction of other more serious crimes (which are not scheduled offences) into the totality of crimes committed on the occasion in question, would transform the situation and render unlawful the s. 30 arrest based on malicious damage. If that is so then the remarkable result would follow that a criminal who commits a scheduled offence and is thereby liable to arrest under s. 30 and to the various consequences which are provided for in the section, may avoid all of these draconian measures by committing other more serious non-scheduled crimes on the same occasion.

 

I am satisfied that the first part of the attack of the two accused on the legality of their arrests under s. 30 of the 1939 Act is not well founded.

The second and final aspect of this issue is whether the arrests, detention and interrogations of the two accused under s. 30 were lawful having regard to the purpose and the content of the 1939 Act and also the background to the crimes alleged to have been committed.

In the context of this particular aspect of the issue as to the legality or otherwise of the s. 30 arrests, criminals may be divided broadly into two categories. First, those who commit crime solely or in part as members of or to further the interests or aims or objectives of any unlawful organisation as defined in s. 18 of the Act—such crimes being hereinafter called ‘subversive crimes’. Secondly, those who are not within the first category, viz criminals who are not connected with any such unlawful organisation and whose crimes contain no subversive or political element—such crimes being hereinafter called ‘ordinary crimes’.

Mr Carroll SC has conceded on behalf of the prosecution that all of the offences which are alleged to have been committed at and about the Willis home on the night of 19/20 November 1984 comprise ‘ordinary’ crimes as defined and it is not suggested that either accused is a member of or connected with any unlawful organisation as defined in s. 18.

Are the powers granted to the police by s. 30 of the 1939 Act available to them as weapons for combating ‘ordinary’ crime?

To answer that question one must consider, first, the nature and purpose of the 1939 Act; secondly, the nature and extent of the powers given to the police by the section and other powers provided by the Act consequent upon a s. 30 arrest, and, thirdly, a comparison should be made between such powers and the powers the police have under the ordinary criminal law, and, finally, it may be necessary to consider also the effect of s. 30 in terms of its constitutional validity.

The nature and purpose of the 1939 Act
The title of the statute itself Offences Against the State Act, clearly indicates that its general purpose is to deal with political or quasi political crimes against the State, its organs or personnel. This is further borne out and amplified by the long title which is in the following terms:

An Act to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State, and for that purpose to provide for the punishment of persons guilty of offences against the State, to regulate and to control in the public interest the formation of associations, to establish Special Criminal Courts in accordance with Article 38 of the Constitution and provide for the Constitution, powers, jurisdiction, and procedure of such Courts, to repeal certain enactments and to make provision generally in relation to matters connected with the matters aforesaid.

It will be noted that there is nothing stated in the long title to the Act or elsewhere in the Statute to indicate an intention on the part of the legislature that the special draconian police powers therein provided are to apply to ‘ordinary’ as well as to ‘subversive’ crime. On the contrary, the whole tenor of the Act indicates otherwise.

The Act is divided into six parts. The first is preliminary and general and requires no comment. The second part creates a series of offences against the State, all of which are patently ‘subversive’ crimes as defined herein. The third part deals with unlawful organisations; provides machinery for their suppression and other related matters. The fourth part contains miscellaneous provisions which appear to relate in the main to subversive crime and the consequences thereof. This part includes s. 30 which provides, inter alia, for the arrest, detention and interrogation of suspected persons. Part V provides for the setting up of Special Criminal Courts and other matters pertaining thereto. It is enacted in s. 35 (2) that that Part operates ‘if and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this Part of this Act shall come into force’.

S. 36 (1), which is also included in Part V, provides for scheduled offences and is as follows:

Whenever while this Part of this Act is in force the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, the Government may by order delcare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of this Part of this Act.

Pursuant to the power contained in the latter section the Government has by order declared a number of statutory crimes to be scheduled offences. These include offences regarding malicious damage to property but not offences under the Larceny Act 1916. Strangely, no Government since the passing of the Act in 1939 has sought to include the crimes of murder or manslaughter in the list of scheduled offences although Part V has been in force for much of the time from 1939 up to the present. It was last promulgated in 1972.

S. 52, which is also in Part V of the Act, curtails the right to silence of any person detained in custody under any provision of Part IV and provides that ‘any member of the Garda Siochána may demand of such person at any time while he is so detained, a full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence’. If he does not comply with the requirements of the section or if he gives false or misleading information, the detainee is guilty of an offence which renders him liable to imprisonment for a term of not more than six months.

Part VI of the Act relates to detention without trial. It has been repealed and re-enacted with some alterations by the Offences Against the State (Amendment) Act 1940. This Part also relates to ‘subversive’ crime.

If having reviewed the 1939 Act generally, one considers in the light of the broad purpose of the statute the specific provisions contained in ss. 30, 35, 36, and 52 the following interpretation emerges:

S. 30 provides the police with, inter alia, patently draconian powers. These include a right to detain in police custody without charge a person arrested pursuant to the section, for a period which may be as long as 48 hours, and to interrogate him while so detained. The detainee also may be required to answer truthfully questions put to him by investigating officers on foot of s. 52 of the Act and his right to silence is significantly diminished on that account. There are no corresponding powers or obligations contained elsewhere in the criminal law of this state. Excluding special powers contained in the 1939 Act, the police have no right to compulsorily interrogate a person suspected of crime or to detain him against his will before charge and every person so suspected has a right to silence and may not be compelled to answer questions or furnish any information. A police officer who arrests, with or without a warrant, a person who has committed or is suspected of having committed a criminal offence must under the ordinary criminal code charge that person with an offence as soon as reasonably practicable after arrest.

A comparison between the police powers contained in ss. 30 and 52 of the 1939 Act and those which apply elsewhere in the criminal law establishes beyond controversy that ss. 30 and 52 are statutory provisions which, in the words of O’Higgins CJ in In re the Emergency Powers Bill 1976 [1977] IR 159, at p. 173 ‘make such inroads on the liberty of the person [ that they ] must be strictly construed’ and that ‘any arrest sought to be justified by the section must be in strict conformity with it’.

With that stricture in mind how then should one interpret the extent to which the police powers contained in s. 30 may be applied? Insofar as such powers are resorted to by the police as weapons in combating ‘subversive’ crime, I need make no comment as in this case I am concerned with ‘ordinary’ crime only, save to say that there is abundant evidence to show that the legislature intended such powers to be availed of by the police only in connection with ‘subversive’ crime. In this regard it will be noted that a police officer may resort to powers contained in s. 30 only when he has a bona fide suspicion either that a person has committed, is about to commit or is concerned in the commission of any offence created by the 1939 Act (all of which comprise ‘subversive’ type crimes) or that he has committed or is associated with an offence which is for the time being a scheduled offence for the purpose of Part V of the Act.

As already stated, scheduled offences are provided for in s. 36 which is within Part V, i.e. it operates only whenever that Part is in force and the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. The adequacy or otherwise of the ordinary courts to conduct and dispose of criminal business arises only in connection with ‘subversive’ crime. Accordingly, it would seem to follow that in making provision for the extension of the list of offences to which s. 30 relates beyond the ‘subversive’ type offences created by the Act itself, the legislature intended to provide that the police might have regard to scheduled offences also as justification for the exercise of powers under s. 30, but only as a weapon in combating ‘subversive’ crime; that such rights would remain in force only for so long as the Government was satisfied that significant ‘subversive’ crime was likely to continue and that the ordinary courts were inadequate to deal with it, and that it was never intended to make any alteration in the criminal law as administered by the ordinary courts in respect of ‘ordinary’ crimes. There does not seem to me to be anything in the wording of s. 30 and other related provisions in the 1939 Act which vitiates or inhibits that construction. If it were decided that the extension of s. 30 is intended to include scheduled offences whether committed or threatened for subversive purposes on the one hand or constituting ‘ordinary’ crime on the other, then at least one remarkable consequence would follow. If a police officer is at present entitled to exercise the powers conferred on him by s. 30 where he reasonably suspects a person of having committed a scheduled offence which, having regard to the circumstances of the particular case, is an ‘ordinary’ and not a ‘subversive’ crime, then that right, far from being a permanent feature of the criminal law subject only to statutory repeal or amendment by the Oireachtas, is no more than a transient right which may come and go depending on the view of the Government of the day on an unrelated matter, namely whether or not at any given time the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order. That matter would appear to have no bearing whatever on the prosecution of ‘ordinary’ crimes which at all times have been and as far as can be reasonably foreseen always will continue to be dealt with by the ordinary courts.

In the light of the foregoing I am satisfied that as the alleged crimes involved in this case are ‘ordinary’ crimes as herein defined, the powers conferred by s. 30 of the 1939 Act were not available to the arresting officers and, accordingly, the arrest of each accused made on foot of that section is unlawful and, having regard to The People v Madden [1977] IR 336, everything which happened after the two accused had been so arrested is tainted with illegality. This, of course, includes the respective statements alleged to have been made by each of the accused while in Garda custody. In the circumstances it is not necessary to review s. 30 in the context of its constitutional validity.

SUPREME COURT
WALSH J

(Hederman J concurring) delivered his judgment on 25 July 1986 saying: This is an appeal brought by the Director of Public Prosecutions against the acquittal by a jury in the Central Criminal Court of the two above-named defendants of the charge of murder. The acquittal was directed by the presiding judge Mr Justice Barr.

This is an appeal brought by the Director of Public Prosecutions against the acquittal by a jury in the Central Criminal Court of the two abovenamed defendants of the charge of murder. The acquittal was directed by the presiding judge Mr Justice Barr.

The defendants had been arraigned and pleaded not guilty to the charge of murder of one James Willis on the night of 19/20 November 1984 at his dwellinghouse at Ballycurreen, Glounthaune, Co. Cork. On the night in question the deceased’s home had been broken into by three men, apparently for the purpose of robbery. Entry was gained to the house by the intruders by bursting or breaking the keeper of a Yale type of lock on the front door and by damaging a bolt on the back door. The house was occupied by the deceased and his brother John Willis. Each of the brothers was severely assaulted by the intruders, and the deceased received the fatal injuries. In addition to the damage to the doorways of the house the intruders also damaged items of furniture in the course of the struggle with the occupants and ransacked the house in a search for cash and other valuables. From the outset it appears that the Garda Siochána suspected the two defendants to have been among the intruders and each of them was arrested pursuant to s. 30 of the Offences Against the State Act 1939. At the time the Garda authorities had no sufficient evidence to justify a charge against either of them for any of the offences committed in the Willis home. The Superintendent in charge of the case stated in evidence that he felt justified in directing an arrest under s. 30 based upon the suspicion that each accused had committed the scheduled offence of malicious damage on the night in question. The object of the arrest, according to the police evidence, was to provide an opportunity to enable the arrested persons to be interrogated during the period of detention authorised by s. 30 on all of the crimes committed at the Willis home and other ‘related matters.’

The defendants were arrested on the morning of 12 December 1984 in purported pursuance of s. 30 of the Offences Against the State Act, 1939. They were then brought to the Bridewell Garda Station in Cork, where each one was detained, and interrogated by Garda officers about the death of the deceased, the assault upon the other brother and other matters which had occurred on the date of the intrusion into the house. Part of the case in the trial against the defendants was that while in detention under s. 30 of the Act of 1939 each of them had made a written statement admitting participation in the events which had taken place in the Willis house on the night in question. In fact the successful prosecution of the accused depended on the admission of those statements in evidence by the trial judge.

It was submitted to the trial judge on behalf of each of the accused that the arrests made under s. 30 were unlawful. If that were so the statements must be rejected for being in breach of the constitutional prohibition upon arrest or detention save in accordance with law. Having heard submissions on the point from both sides and having considered the matter at some length the learned trial judge excluded the statements from evidence and consequently directed the acquittal of both defendants.

The learned trialjudge was satisfied that each of the arresting officers and the Superintendent had a bona fide suspicion when making the respective arrests that the defendants ‘may have been involved in malicious damage at the Willis home on the night of James’s murder’. The issue before the judge, as he saw it, was whether, notwithstanding ‘the validity of the suspicions held by the arresting officers’, they were entitled to resort to s. 30 of the 1939 Act to arrest the accused persons, when the primary purpose of the arrest was to enable or to provide an opportunity for the interrogation of the accused persons in respect of an unscheduled offence namely, the murder of James Willis. The latter offence, in the words of the judge, was one ‘the gravity of which dwarfed into insignificance the minor malicious damage element in the transaction.’ As the learned trial judge saw it the question was whether the malicious damage offence alleged to have been committed on the night in question, not having ‘been committed by or on behalf of any unlawful organisation within the meaning of s. 18 of the 1939 Act, or by a member of any such organisation’, could lawfully justify the arrest, detention and interrogation of the defendants under s. 30 of the Act.

After a lengthy consideration of the nature and the purpose of the Offences Against the State Act, 1939, the learned trial judge came to the conclusion that Part V of the Act, by virtue of which malicious damage was made a scheduled offence, was intended to deal only with crimes which he described as being of a ‘subversive nature’ and not intended to deal with crimes which may be classified as to use his own words ‘ordinary crimes’, that consequently s. 30 had been wrongly invoked to arrest the defendants because there was no ‘subversive’ element in the crime of malicious injury imputed to them.

Because of the importance of the issue raised in the ruling and in deference to the painstaking examination by the learned trial judge of the nature and purpose of the 1939 Act and his conclusions I think it is desirable that I also should examine the nature and purpose of the Act in question. At this stage it should be noted that Statutory Instrument No. 142 of 1972 and Statutory Instrument No. 282 of 1972 specified malicious damage offences to be scheduled offences for the purpose of s. 36 and s. 37 of the Offences Against the State Act, 1939. Neither during the trial nor during the appeal in this Court has any question been raised as to the validity of the statutory instruments in question or as to the validity of s. 30. It is also to be noted that neither in the court of trial nor in this Court was any question raised as to the existence at all relevant times of a proclamation made by the Government pursuant to s. 35 of the 1939 Act bringing into force Part V of that Act.

The Bill for what subsequently became the Treason Act, 1939 and the Bill for what subsequently became the Offences Against the State Act, 1939 were introduced on 8 February 1939. The Treason Act was enacted on 30 May 1939 and the Offences Against the State Act was enacted on 14 June 1939. The crime of treason is defined in Article 39 of the Constitution and the object of the Treason Act in 1939 was to provide for the punishment of the crime of treason.

The introduction and enactment of the Offences Against the State Act, 1939 followed a ‘proclamation’ issued by the Irish Republican Army in December 1938 to the effect that all the powers of the Executive Council of the first Dail had been transferred by the ‘remaining deputies’ of that Dail to the Council of the Irish Republican Army. This was followed by other ‘proclamations’ on 15 and 16 January 1939 claiming that the Council of the Irish Republican Army was thenceforth the legitimate and legal Government of every part of Ireland with the right to declare war. It did in fact purport to ‘declare war’ upon the United Kingdom following an ultimatum to Lord Halifax, the then Foreign Secretary of the United Kingdom Government.

Article 6 of the Constitution provides that the powers of government, legislative, executive and judicial are exercisable only by or on the authority of the organs of the State established by the Constitution. Article 15 of the Constitution provides that the sole and exclusive power of making laws in the State is vested in the Oireachtas. Article 28 of the Constitution provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. The same Article goes on to say that war shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann. Article 34 of the Constitution provides that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution, and Article 35 provides that all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law. Article 40 of the Constitution provides that the publication of seditious matter is an offence which shall be punishable in accordance with law, and the same Article provides that the right of assembly guaranteed by the Constitution is confined to those who assemble peaceably and without arms and that the right to form associations and unions is subject to public order. Article 15 of the Constitution vests the right to raise and maintain military or armed forces exclusively in the Oireachtas and provides that no other military or armed forces can be raised or maintained for any purpose whatsoever. Article 38 of the Constitution provides for the establishment by law of special courts for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. The provisions of the Offences Against the State Act must be seen against the background of these constitutional provisions. While it may well be that some of these constitutional provisions are self-executing in the sense that they do not require legislation to implement them nevertheless the legislation embodied in the Offences Against the State Act, 1939 must be seen as a legislative intervention designed to secure and make effective the rights guaranteed by the Constitution and to provide punishment for and otherwise deal with the breaches of the Constitution envisaged in the Articles already referred to.

Part I of the Act deals mainly with definitions. Part II was intended to replace the then existing laws regarding offences which were directed against the security of the State, and the carrying on of the work of government, and public order generally. Certain additions and certain changes were embodied which were seen to be necessary in view of the altered constitutional position brought about by the enactment of the Constitution in 1937. The specific offences aimed at in Part II of the Act are —

(a) the usurpation of the functions of government;

(b) the obstruction of government (including attempts by force of arms or other violent means or any other forms of intimidation to prevent the exercise by the President, the members of the Oireachtas, the judiciary, or the executive of the State, or the State employees of any of their powers or functions;

(c) illegal drilling and other military exercise;

(d) the formation or maintenance of any secret society in the army or the police force;

(e) the administering of unlawful oaths.

Part II also contains provisions prohibiting the publication of treasonable and seditious matter and provisions designed to fix the responsibility for any breach of the law in regard to printing and publication. Part III of the Act is concerned with one particular aspect of the offences dealt with in Part II namely, unlawful organisations. Parts II and III create a very large number of possible offences. Part IV confers on the police certain special powers of search and arrest and other ancillary powers. Part V can only be in operation at times when the Government is satisfied that the ordinary courts are inadequate and when Part V is in operation, s. 38 of the Act requires the setting up of a Special Criminal Court or Special Courts. The particular circumstances which require the setting up of Special Criminal Courts are those which are necessary for the exercise of the power to ‘schedule’ offences. By virtue of s. 36(1), when Part V is in force and the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment it may by order declare ‘that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purpose of this Part of this Act.’ It is to be stressed that notwithstanding the operation of Part V of the Act and the setting up of Special Criminal Courts, the ordinary courts retain full jurisdiction of all offences except those particular ones which are removed to a Special Criminal Court in the manner prescribed in the Act. The jurisdiction of the Special Criminal Court is restricted to the offences in relation to which the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order which have been ‘scheduled’ by the Government in the prescribed manner, and to any other offences in respect of which there is a certificate by the Attorney General (or, now, also by the Director of Public Prosecutions) that the ordinary courts are in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in respect of the trial of the offence in question.

Thus it would be seen that the first four parts of the Act of 1939 are always in force and are intended to be complementary to the constitutional provisions already referred to. Parts V and VI of the Act may be regarded as emergency provisions because they only come into force and remain in force for so long as the necessary proclamations are in force and the other requirements of the Act are complied with.

S. 30 of the Act, which is 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 Garda Siochana (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 [1982] IR 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 judical review as is clearly established by the decision of this Court in Trimbole v The Governor of Mountjoy Prison [1985] IR 550. No exercise of the powers conferred by s. 30 in relation to any person can be justified solely by the desire to interrogate that person. S. 30(5) makes specific provision for interrogating per sons detained under s. 30 and it is the only provision of the Offences Against the State Act 1939 giving the right to ask particular questions conferred on members of the Garda Siochana when Part V is not in force. It is the right to demand the name and address of the person arrested and detained. Subs. (6) provides that every person who obstructs or impedes a member of the Garda Siochana or who shall fail or refuse to give his name and address or who shall give a false or misleading name shall be guilty of an offence. When Part V of the Act is in force and when a person is arrested under s. 30 because of a suspicion of having committed or being involved in the commission of a scheduled offence, then s. 52 of the Act authorises a member of the Garda Siochana to demand of such person at any time while he is so detained a full account of his movements and actions during any specified period and to demand of him all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of the Act of 1939, or any scheduled offence. Any person who refuses to give such an account or an information, or gives false or misleading information shall be guilty of an offence. Apart from these particular provisions in s. 30 and s. 52, the Act of 1939 does not place any obligation on any person to answer any question, and any person detained or arrested by virtue of those sections would not, subject to the possibility of committing the offence of creating a public nuisance, or of misprision, be committing any criminal offence if the account he gives of his movements or the information he gave in regard to the commission or intended commission of the criminal offence were false or misleading: see The People v Madden [1977] IR 336 at p. 356—a decision approved by this Court in The People v Kelly (No. 2) [1983] IR 1, at p. 24. But as the latter case pointed out that while ss. 30 and 52 respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent are the only statutory rights of interrogation as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in cases of arrest for ‘ordinary’ offences, may be asked any other questions by members of the Garda Siochana present, but he is under no obligation to answer any of them and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all persons detained under s. 30 and, as described by this Court in its judgment in In re the Emergency Powers Bill, 1976 [1977] IR 159, at p. 173, such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts. These specified rights were not intended by the Court nor expressed to be an exhaustive list but if s. 30 were used in breach of such rights, the High Court might grant an order for release under the provisions of Article 40 of the Constitution. Parts II and III of the Offences Against the State Act, 1939, create a large number of different offences and when Part V is in operation, the number of possible offences is considerably increased. When a person is arrested under s. 30 as in any other arrest he must be informed of which of the many possible offences he is suspected unless he already has that information: see The People v Walsh [1980] IR 294. In so far as the decision of the Special Criminal Court in The People v McDermott 1974 Frewen 211 might appear to say the contrary it ought not to be followed because of the decisions of this Court in The People v Walsh [1980] IR 294 and The People v Shaw [1982] IR 1. During his detention, in addition to the rights already set out, he must not be subject to any form of questioning which the courts would regard as unfair or oppressive either by reason of its nature, the manner in which it is conducted, its duration or the time of day, or of its persistence into the point of harrassment where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned. A fortiori this applies to cases where the initial detention period of 24 hours is extended to 48 hours by virtue of the provisions of s. 30(3) of the Act of 1939, bearing in mind that the officer, not below the rank of Chief Superintendent who may authorise the extension of the detention must also entertain the necessary suspicions — see the decision of the Court of Criminal Appeal in the The People v Eccles Court of Criminal Appeal 1985 Nos. 30, 31 and 32, 10 February 1986.

I have dealt in some detail with the powers given by s. 30 and s. 52 because it appears from the learned trial judge’s reference to s. 30 as providing the Garda Siochana with ‘patently draconian powers’ and giving them the right to ‘compulsorily interrogate a person suspected of crime’ that he felt that ss. 30 and 52 give to members of the Garda Siochana carte-blanche both as to the manner, nature and duration of the interrogation of persons so arrested. I hope I have succeeded in showing that such is not the case and that any mistaken beliefs to the contrary wherever they reside will be dissipated. The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. S. 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.

It is not outside the bounds of possibility, however unlikely it might appear to be, that in some cases of arrest pursuant to s. 30 of the Act the police might not wish to question any person so arrested save to ask him his name and address. But if they should wish to do so and in fact proceed to interrogate persons so arrested, all the safeguards already mentioned come into operation. What s. 30 does not provide for is the bringing of the arrested person before a court as soon as it is practicable. That however is a separate matter. That does not mean however that in the intervening period the person arrested may be treated in any way other than would be tolerated for a person who was arrested other than under s. 30 of the Act.

One can see the logic of the learned trial judge’s views in that Part V of the Act only comes into force in the emergency conditions already referred to and while it may be said that the Act is in general intended to deal with what might be generally called the internal enemies of the State, it does not follow that its application is necessarily confined to persons who are engaged in what are generally known as subversive activities, which in common parlance appear to be activities endangering the institutions and the security of the State itself. It is not at all impossible that in the light of the economic conditions in the State there could be activities which would be very injurious to the economic position of the State and might equally well be comprehended by the Act. In fact in the years during the late war and the years following it, the Special Criminal Court was very frequently engaged in the trial of what were called ‘black market’ cases. Equally it does not follow that the power of the Government to issue a proclamation to the effect that the ordinary courts are inadequate to secure the effective administration of justice, the preservation of peace and order must necessarily apply only with reference to the type of offences created by Parts II and III of the Act. It is common knowledge, and indeed was discussed in the debates in the Oireachtas leading to the enactment of the 1939 Act, that what was envisaged were cases or situations of a political nature where juries could be open to intimidation or threats of various types. However a similar situation could also arise in types of cases far removed from what one would call ‘political type’ offences. There could well be a grave situation in dealing with ordinary gangsterism or well financed and well organised large scale drug dealing, or other situations where it might be believed or established that juries were for some corrupt reason, or by virtue of threats, or illegal interference, being prevented from doing justice. This is a matter on which the executive arm of government must make up its mind before issuing a proclamation but, as the Act provides, it is not left solely to the discretion of the executive arm of government. Notwithstanding whatever views the executive arm of government may hold, s. 35(5) of the Act of 1939 entrusts to Dáil Éireann the power to pass a resolution annulling the proclamation which by virtue of that section is in force, and thereupon the section shall cease to be in force. In addition subs. (4) of that section provides that if at any time the executive arm of government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, the Government must make and publish a proclamation declaring that Part V of the Act shall cease to be in force, and thereupon Part V ceases to be in force forthwith. However s. 36(1) provides that while Part V of the Act is in force and where the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment , the Government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of Part V of the Act. While the statute imposed upon the executive power the obligation to withdraw from the scheduled category any offence or classes of offence when it is satisfied that the effective administration of justice and the preservation of public peace and order can be secured through the medium of the ordinary courts, no such power was given to Dáil Éireann to exercise a power similar to that already referred to in relation to the withdrawal or the annulment of the emergency proclaimed by the executive arm of government. No provision is made in the statute for a qualification of these offences by relating them to what the learned trial judge referred to as ‘subversive’ situations or types of offences. Some support for the learned trial judge’s view in the matter might be thought to be found in s. 34 of the Act which provides for forfeitures and disqualifications of persons convicted by a Special Criminal Court of an offence which at the time of the conviction is a scheduled offence for the purpose of the Act. If a person is tried in the ordinary courts for such an offence even when Part V is in force, the forfeitures and disqualifications would not arise. Therefore it cannot be said that the possible forfeitures and disqualifications relate to the particular type of offence but depend solely upon the tribunal in which the conviction is secured. That would seem to suggest that the Oireachtas can only have in mind that the scheduled offences would be of the nature and character which the learned trial judge embraces in the phrase ‘subversive’ types of offences. However, if that was to have been the intention of the Oireachtas that offences of a particular nature should upon conviction give rise to forfeitures and disqualifications it appears somewhat anomalous that they do not attach to convictions of the same offences in any other court. When a person is tried before the Special Criminal Court for a non-scheduled offence, the forfeiture and disqualification referred to does not apply. When a person charged with a scheduled offence is brought before the District Court, the District Justice if required by the Attorney General, and now by the Director of Public Prosecutions, shall send such person for trial by a Special Criminal Court on such charge, and the person is in the case of scheduled offences which on conviction at once placed in jeopardy of the forfeitures and disqualifications already referred to. The situation is that effectively it is the Attorney General or the Director of Public Prosecutions who basically has the power to decide whether upon conviction of such offence disqualification and forfeiture shall be incurred because the question of whether the case is tried in the ordinary courts or in the Special Court is his decision. Effectively then it is his decision which determines whether or not a conviction will carry with it forfeiture or disqualification. While this would appear to create a most anomalous situation I do not think that it lends support to the thesis of the learned trial judge, although it may put in question the validity of s. 34 of the Act of 1939, which provides for such forfeitures and disqualifications. Incidentally, it is to be noted that this section is contained in Part IV of the Act which is part of the permanent legislation but is operative only when Part V is in force.

Whatever may have been in the minds of the members of the Oireachtas when the legislation was passed, in so far as their intention can be deduced, as it must be, from the words of the statute, scheduled offences which are in the words of the learned trial judge ‘ordinary’ offences are captured as well as the same type of offences being committed in what one might term ‘subversive’ situations, bearing in mind that this situation exists only for so long as Part V is in force, which itself is dependant upon the continued existence in force of the proclamation of the executive arm of government and which remains fully within the control of Dáil Éireann as distinct from the executive arm of government. Therefore the situation exists only for so long as Dáil Éireann chooses to permit it to exist. While it does exist there is no alternative but to apply the law to what have been called ‘ordinary’ offences, but it is the duty of the courts to be ever vigilant to see that there is no abuse of the process. Therefore in any case, of which there have been some examples in the past, where the powers given under s. 30 have been abused in respect of an ‘ordinary’ scheduled offence, such as where the Garda Síochána are not in reality concerned with the scheduled offence but are using the power for some other purpose, then there is an abuse and the provisions of Article 40 of the Constitution can be invoked: see the judgments of this Court in Trimbole v The Governor of Mountjoy Prison [1985] I.R. 550, the judgment of the Chief Justice when President of the High Court in The State (Bowes) v Fitzpatrick 1978 No. 601 and 602SS, 1 November 1978. In the present case, the learned trial judge was perfectly satisfied that in arresting the defendants in respect of the scheduled offence of malicious damage that the Gardai were acting bona fide and that they had a valid suspicion that each of the accused had committed a scheduled offence. Even though the scheduled offence in question faded into relevant insignificance when compared with the homicide with which it was directly connected there was a genuine case of malicious damage. That means the judge has held that the motive for the arrest was not simply that of having an opportunity to ask questions about the murder, but that the arrest was a genuine one for malicious damage even though it would provide an occasion whereby questions could also be asked about the murder. Apart from the statutory obligation imposed on the accused to furnish their names and address under s. 30 and to put the questions authorised by s. 52 the Gardai had no other particular power to interrogate them which was any greater than the power they have to ask questions of persons in custody if the provisions of the Offences Against the State Act had never been invoked. It did, however, give the Gardaí the advantage of having persons whom they wished to question in a position where such persons could not walk away from them. Apart from that factor, all the other safeguards envisaged by the law and already referred to were applicable and there has been no evidence that any of these safeguards were violated. Accordingly the arrest under s. 30 was lawful. The situation which resulted appears to be in all fours with that dealt with in the decision of the Court of Criminal Appeal in The People v Towson 1977 No 102, 5 July 1978.

Therefore, in the circumstances of the present case I am satisfied that the learned trial judge, who gave such deep thought to the many fundamental questions which arise from a consideration of the provisions of the Offences Against the State Act 1939, was in error in holding that a scheduled offence must be shown to be a ‘subversive’ offence as distinct from an ‘ordinary’ offence before the power of arrest given by s. 30 can be exercised in relation to that offence. I would therefore allow this appeal.

HENCHY J:

This case has proceeded, both in the Central Criminal Court and in this Court, on the assumption that the inculpatory statements made by the accused while in custody must be held to be inadmissible in evidence if the custody happened to have been unlawful. I consider that this assumption is not well founded. Mere illegality in the mode of arrest does not make subsequent incriminating statements inadmissible. They may be ruled inadmissible only if they fall into one of the recognized grounds for rejecting incriminating statements, such as that they were not voluntary, or that they were taken in breach of the Judges’ Rules, or that their prejudicial effect outweighs their probative capacity, or that they were obtained by fundamentally unfair means. As the transcript shows, none of those grounds was relied on.

The only other ground on which the statements could be rejected is if it could be held that they were the fruit of an arrest which was a conscious and deliberate violation of the prisoner’s constitutional right to personal liberty. However, that conclusion was not open, for even if it could be said that the arrest was an unconstitutional act, it was not consciously or deliberately so. In arresting the accused under s. 30 of the Offences Against the State Act, 1939, for a scheduled offence, the arresting Gardai were acting in good faith, because they were merely following a system of arrest which had been followed—and given at least tacit approval in the courts—ever since prosecutions were first brought in respect of scheduled offences under that Act. It would follow, therefore, that, regardless of any unconstitutionality in the arrest, the statements were admissible in evidence.

However, I am prepared to deal with this appeal on the assumption that the statements were inadmissible if they were made while the accused were being wrongfully detained on foot of a purported arrest under s. 30 of the 1939 Act. The sole question in the appeal as argued, therefore, is whether the arrest of the accused under s. 30 in respect of malicious damage to property was unlawful, on the ground that s. 30—indeed the whole of the 1939 Act—is directed against ‘subversive’ as distinct from ‘ordinary’ offences.

It is true that the 1939 Act shows by its long title and by the scope of its provisions that its purpose was to make provision, mainly in terms of arrest, trial and punishment, for acts and conduct calculated to undermine public order and the authority of the State. But it does not follow from the statutory scheme that the Act draws a clear line in all cases between ‘subversive’ and ‘ordinary’ offences.

It may be said of all criminal offences that they are in one degree or another offences against the State, in that, by being made criminal, they are deemed to be so repugnant to the common good that the resources of the State are employed for the purpose of the conviction and punishment of the offenders. Some criminal offences are, of course, by their nature more essentially offences against the State, as in the case of subversive offences (such as treason) which are directed at overthrowing or subverting the organs of government established by the Constitution. But many offences which are normally considered to be ordinary or non-subversive may, because of the circumstances of their commission, represent a serious threat to the State. The 1939 Act, it seems to me, enables the special machinery of the Act to be used in specified circumstances in respect of both categories of offences.

Part I of the Act (‘Preliminary and General’) consists mainly of definitions. Part II (‘Offences Against the State’) and Part III (‘Unlawful Organisations’) deal with acts and conduct which are deemed by the Act to be essentially offences against the State and therefore essentially subversive. Apart from Part VI (‘Powers of Internment’), the machinery for dealing with such subversive offences is to be found in Part IV (‘Miscellaneous’) and Part V (‘Special Criminal Courts’). The provisions in the latter two Parts show that the machinery of the Act is available for dealing not only with offences which are expressly or impliedly deemed by the Act to be subversive but also with offences which the Government may indicate as fit to be dealt with under the Act as if they were subversive offences.

S. 36(1), which is in Part V, provides that, in the circumstances specified, the Government may by order declare ‘offences of any particular class or kind or under any particular enactment’ to be scheduled offences for the purposes of Part V. One of those purposes is to enable such a scheduled offence to be tried in certain circumstances in a Special Criminal Court. But even where a person is brought before the District Court charged with a non-scheduled offence, s. 46 shows that if the Attorney General (now the D.P.P.) so requests and certifies that the ordinary courts are, in his opinion, ‘inadequate to secure the effective administration of justice and the preservation of public peace and order’ in relation to the trial of the accused on such charge, the District Justice must pass the case to a Special Criminal Court for trial.

I find the sweep of those provisions to be so unequivocal and wide as to negative the conclusion that the operation of the Act is confined to subversive offences. In particular, I consider that the power vested in the Government to schedule offences is a recognition of the need to use the machinery of the Act in relation to offence of any particular class or kind or under any particular enactment, where that use is duly applied for and certified as necessary by the Attorney General (now the D.P.P.). The Government order making offences under the Malicious Damage Act, 1861, scheduled offences was made in due exercise of the powers vested in the Government by s. 36. To hold that in making that order the Government acted in excess of the powers conferred by s. 36 (in making ordinary as well as subversive acts of malicious damage under the 1861 Act scheduled offences) would be to amend s. 36 by writing into it limiting words which it does not contain. As well as that, the courts must treat the order as having been validly made at least until an issue as to its validity has been duly raised. No such issue has been raised in this case.

S. 30(1) of the Act authorises, inter alia, the arrest of a person on suspicion that he has been concerned in the commission of an offence which is for the time being a scheduled offence. Such an arrest took place in this case. 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. In the circumstances the arrest could have been unlawful only if it were held that the particular offence of malicious damage to property was not duly made a scheduled offence because it was not subversive. For the reasons I have given, I consider that the Government order making all offences under the 1861 Act scheduled offences must be given full effect.

I would accordingly allow this appeal to the extent of holding that the jury’s verdict of not guilty by direction should be set aside.

GRIFFIN J:

The facts and the circumstances giving rise to this appeal are fully set out in the judgment of Walsh J. The essential question for the decision of this Court is whether the power of arrest of a person suspected of having committed a scheduled offence under Part V of the Offences Against the State Act, 1939 (‘the Act’) may be exercised by a member of the Garda Síochána unless the member suspects that the person in question did so for ‘subversive’ motives. The learned trial judge held that in respect of the powers given to the Garda by s. 30‘there is abundant evidence to show that the legislature intended such powers to be availed of by the police only in connection with “subversive” crime’, which he defined as crimes committed by ‘those who commit crime solely or in part as members of or to further the interests or aims or objectives of any unlawful organisation as defined in s. 18 of the Act’. Such crimes he contrasted with what he described as ‘ordinary’ crimes, i.e. those committed by ‘criminals who are not connected with any such unlawful organisation and whose crimes contain no subversive or political element’. He was satisfied that as the alleged crimes involved in this case were ‘ordinary’ crimes as defined by him, the powers given by s. 30 were not available to the arresting officers and that the arrest of each of the above-named accused persons made on foot of that section was unlawful, and that the statements made by them were not admissible in evidence.

On behalf of the appellant, it was submitted

(1) that the learned trial judge erred when he interpreted the word ‘offence’ in s. 30 in effect as being confined to subversive offences as he defined them;

(2) that in the absence of obscurity or ambiguity the words ‘an offence which is for the time being a scheduled offence for the purposes of Part V of this Act in s. 36 must be given their plain and natural meaning, as should the words ‘offences of any particular class or kind or under any particular enactment’ in s. 36 of the Act (the section providing for scheduled offences);

(3) that in interpreting s. 30 and s. 36 of the Act the learned trial judge gave undue and unwarranted weight to the short title and the long title to the Act.

The long title to the Act is in the following terms:

An Act to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State, and for that purpose to provide for the punishment of persons guilty of offences against the State, to regulate and control in the public interest the formation of associations, to establish Special Criminal Courts in accordance with Article 38 of the Constitution and provide for the Constitution, powers, jurisdiction, and procedure of such Courts, to repeal certain enactments and to make provision generally in relation to matters connected with the matters aforesaid.

The Act is in six parts but for the purpose of this appeal it will be necessary to refer only to certain provisions of Parts II, III, IV and V.

Part II is headed: ‘Offences Against The State’, and contains what might be termed typical offences which are aimed at the security and the authority of the State. These offences include the usurpation of functions of government (s. 6), obstruction of government (s. 7), obstruction of the President (s. 8), interference with military or other employees of the State (s. 9), prohibition of printing, publishing etc. incriminating, treasonable or seditious documents (s. 10), possession of treasonable, seditious or incriminating documents (s. 12), unauthorised military exercises (s. 15), and administering unlawful oaths (s. 17). There are, however, two sections in Part II which are of general application and are not confined to subversive activities, i.e. the obligation (breach of which constitutes an offence) on every person printing any document for reward to print or write on at least one copy the name and address of the person for whom it was printed, and of retaining such copy for six months (s. 13), and the obligation to print the printers’ name and address on any document printed for reward (s. 14), contravention of this latter provision also being an offence.

Part III is headed: ‘Unlawful Organisations’. S. 18 declares what organisations are unlawful organisations. S. 19 enables the Government by order to declare that any particular organisation is an unlawful organisation and to make (and to revoke) an order suppressing any such organisation. S. 21 prohibits membership of an unlawful organisation.

Part IV is headed: ‘Miscellaneous’, and includes s. 30. S. 30(1) is in the following terms:

A member of the Garda Síochána (if he is not in uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of 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 or whom he suspects of carrying a document relating 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.

Under s. 30(3) the arrested person may be detained in custody for twenty-four hours from the time of his arrest, and may on the direction of an officer of the Garda Síochána not below the rank of Chief Superintendent be so detained for a further period of 24 hours.

Parts II, III and IV of the Act are part of the permanent legislation of the State. Part V, which is headed ‘Special Criminal Courts’ is not part of the permanent legislation of the State and is not in force until brought into force in pursuance of s. 35.

S. 35(2) provides that:

(2) If and whenever and so often as the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act should come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this Part of this Act shall come into force.

Under s. 35(3) whenever the Government makes and publishes such proclamation, Part V shall come into force forthwith.

S. 36 is the section providing for scheduled offences, and ss. (1) of that section is in the following terms:

Whenever while this Part of this Act is in force the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to offences of any particular class or kind or under any particular enactment, the Government may by order declare that offences of that particular class or kind or under that particular enactment shall be scheduled offences for the purposes of this Part of this Act.

Under s. 36(2) it is provided that when the Government has made any such declaration every offence of the particular class or kind or under the particular enactment to which the declaration relates shall be a scheduled offence (until and unless the Government otherwise provides by order under s. 36(3)).

It is not contested that the Government made the necessary proclamation under s. 35 of the Act to bring Part V of the Act into force, nor is it contested that Part V is still in force. It is also not contested that by the Offences Against The State (Scheduled Offences) Order, 1972, (S.I. No. 142 of 1972), made in pursuance of s. 36(1) of the Act, the Government declared that offences under the Malicious Damage Act, 1861, are scheduled offences for the purposes of Part V of the Act.

Each of the accused was arrested under s. 30 of the Act on suspicion of having committed a scheduled offence, namely, malicious damage at the home of James and John Willis on the 19th/20th November, 1984. The argument advanced on behalf of the accused at the trial and again in this Court may be summarised as follows:

1. By virtue of the provisions of Article 40.4.1° of the Constitution, no citizen shall be deprived of his personal liberty save in accordance with law.

2. S. 30 of the Act makes major inroads into the right to liberty of the citizen, and the Act, being a penal statute, must be strictly construed and any arrest made under the Act must be made in strict conformity with the Act.

3. In construing s. 30, not only that section but the Act in its entirety must be considered, and having regard to the long title to the Act and the provisions of Parts II, III, IV and V thereof, the overwhelming purpose and intent of the Act is to protect the State against its enemies and it was intended by the Oireachtas to apply only to what may be called subversive crimes.

As stated earlier, Parts II, III and IV of the Act are part of the permanent legislation of the State. Those parts contain many offences, all of which (with the exception of those created by ss. 13, 14, and 28) are necessarily subversive offences. S. 30 gives express power of arrest in the case of all those offences, whether they are of a subversive nature or otherwise, since all of them are offences ‘under any section or subsection of this Act’. Part V however is not part of the permanent legislation of the State, and scheduled offences under s. 36 can only be such when and for so long as Part V has been brought into force and remains in force under s. 35. The argument on behalf of the accused proceeded on the assumption that the proclamation under s. 35 of the Act could be made only where the ordinary courts are inadequate because of activities of a subversive nature. This is, however, not so. As Walsh J has pointed out in his judgment, if the Government was satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, because of the activities of, say, those engaged in large scale organised crime or trafficking in drugs, whether by way of the intimidation of jurors or of corrupt approaches to jurors or in any similar manner, Part V could be brought into force by the making and publication of the appropriate proclamation by the Government.

In construing a statute or part of a statute, where the words used are not equivocal they must be given their plain or natural meaning. In s. 36(1) the relevant words used are ‘in relation to offences of any particular class or kind or under any particular enactment’. The Government is empowered by that section to declare ‘offences of that particular class or kind or under that particular enactment’ to be scheduled offences. Those words are clear and unequivocal, and if, as contended by counsel for the accused, they were intended by the Oireachtas to refer only to subversive offences or to offences having a subversive motive, it would have been a matter of the utmost simplicity to include appropriate words to limit or confine the offences which might be scheduled to offences of that nature, and it would be reasonable to expect the Oireachtas to have done so. Moreover, s. 45 of the Act gave to the Attorney General (now to the Director of Public Prosecutions) power to direct that a scheduled offence should be tried in the ordinary courts having jurisdiction to try the particular offence. I agree with the submission by counsel for the Director of Public Prosecutions that the rationale for this power must be that the Oireachtas intended that scheduled offences would include those committed for motives other than subversive motives. Likewise, if the Government intended that only offences under the Malicious Damage Act, 1861, which were committed by subversive persons or for a subversive motive should be scheduled offences, it is reasonable to expect that they would have said so in S.I. No. 141 of 1972. On the contrary, they included all offences under the Malicious Damage Act, 1861 in that statutory instrument.

Included in the factors which led the learned trial judge to the conclusion that scheduled offences should be confined to subversive crimes were the short title (‘The Offences Against the State Act, 1939’) and the long title to the Act. Counsel for the accused submitted that regard should be had to the long title in construing ss. 30 and 36, and that the long title may be considered for the purpose of limiting the construction of those sections. I cannot agree. The long title, in my view, cannot be used to modify or limit the interpretation of plain and unambiguous language, and this is, I believe, the effect of the decided cases.

In Minister for Industry and Commerce v Hales, [1967] IR 50, Henchy J said:

Counsel for the [Royal Liver Friendly] Society submits that the object of the Act may be seen more clearly by looking at the long title. I take it to be established by the modern authorities that the long title is part of the Act (see Maxwell on Interpretation of Statutes, 11th Ed., p. 41), but there are also modern authorities that say that it is not permissible to call in aid the long title for the purpose of limiting the interpretation of a statutory provision that is clear and unambiguous – see Ward v Holman, 1964 2 Q.B. 580 (at p. 75).

See also per Hederman J (Finlay CJ and Henchy J concurring) in The State (Aer Lingus) v The Labour Court and Others [1987] ILRM 373 and In re Wykes, [1961] 1 Ch 229 per Buckley J to the same effect.

In Manuel v Attorney-General, [1983] CR 77 in the course of delivering the judgment of the Court of Appeal, Slade LJ said:

the Court is not, we think entitled to look at the long title of the Act for the purpose of construing the contents of the Act, except in so far as these contents are themselves ambiguous: see Maxwell on Interpretation of Statutes , 12th Ed. (1969) pp. 5 and 6.

The statement of Slade LJ was criticised in Bennion on Statutory Interpretation (1984) at p. 577. The author, while stating that the long title is an unreliable guide to interpretation, expressed the view that the statement of Slade LJ strikes at the basis of the informed interpretation rule, and quotes what Lord Simon of Glaisdale said in Black-Clawson Ltd v Papierwerke A.G., [1975] AC 591:

The statutory objective is primarily to be collected from the provisions of the Statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in the case of ambiguity – it is the plainest of all guides to the general objectives of a statute. But it will not always help as to particular provisions.

However, in the same case, Lord Reid having said that he found part of the section being interpreted ‘very obscure’, said:

I think that s. 8 is ambiguous, so this is a case where it is permissible to look at the long title.

In my opinion, the plain language used in ss. 30 and 36 is so clear and unequivocal that the long title may not be looked at or used for the purpose of limiting or modifying that language.

In relation to the proper interpretation of ss. 30 and 36 of the Act, in my opinion the offences which may be scheduled under s. 36 and in respect of which the arrest and detention of the suspect may take place under s. 30 are not confined to subversive offences or offences committed with a subversive motive, and the learned trial judge was incorrect in law in so holding. Any person therefore who is properly arrested and detained under s. 30 of the Act on suspicion of having committed a scheduled offence is detained in accordance with the law.

At the trial and again in this Court a further submission was made on behalf of the accused in relation to the validity of the arrest and detention of the accused, i.e. that what the Gardai were investigating was a murder – a non-scheduled offence – and that they were using the scheduled offence of malicious damage as a device for investigating the crime of murder, and that therefore the arrest and detention of the accused were not valid arrests and detentions under s. 30 of the Act. There was evidence at the trial that the offence of malicious damage had undoubtedly been committed by those who broke into the house of the Willis brothers on the night of the offences with which the trial was concerned. The learned trial judge was satisfied that each member of the Gardai involved in the investigation of the crimes committed had a bona fide suspicion, when making their respective arrests, that the two accused may have been involved in malicious damage at the Willis home on the night of the murder of James Willis. He was also satisfied that although the nature, extent and value of the malicious damage done was comparatively small and the gravity of that crime was outweighed by others committed on the same occasion, nevertheless it constituted an independent crime and was not so inextricably bound up with any of the other crimes committed on the same occasion as to be regarded as not having an independent existence. Counsel for the accused relied on The State (Bowes) v Fitzpatrick a decision of Finlay P (as he then was) made in an inquiry, under Article 40 of the Constitution as to the legality of the detention of the applicant Bowes, in support of their contention. In that case the murder had been committed by using a knife which had been damaged by contact with a bone in the carrying out of the murder. The applicant had been arrested on suspicion of having committed the scheduled offence of malicious damage (to the knife). The learned President was satisfied that the arrest made was, in reality, for the purpose of enabling the applicant to be interrogated for the murder of the deceased, and using the scheduled offence was merely a colourable device for the purpose of bringing the investigation of a murder within the ambit of s. 30. In consequence, he ordered the release of the applicant under Article 40. The present case is, on the findings of the learned trial judge, very far removed from and distinguishable from that case. The present case is, in my opinion, covered by The People v Towson. In that case, the accused had been arrested under s.2 of the Emergency Powers Act, 1976, the terms of which were, for all practical purposes, identical with those of s. 30 of the Act. In the course of the judgment of the Court of Criminal Appeal, delivered by O’Higgins CJ, it was held that as there was a reasonable suspicion that the accused had been involved in or committed the murder of the deceased, this involved inevitably a suspicion that he was guilty of an offence of being in possession of a firearm, with the intent to endanger life (which was a scheduled offence), and that the suspicion was a correctly held suspicion of an offence arising directly out of the matter being investigated, and the arrest could not therefore be faulted on that ground.

At the trial in this case, the learned trial judge, following Towson’s case, held that an arrest under s. 30 based on malicious damage would be lawful notwithstanding that other non-scheduled crimes such as ‘breaking and entering’ and murder were committed. In my view, he was correct in so holding and his finding on this issue was fully justified by the evidence and cannot be assailed.

In the result, in my opinion the learned trial judge was incorrect in law in holding that a scheduled offence under s. 36 of the Act must be confined to subversive offences or offences committed with a subversive motive and that the arrest and detention of the suspected persons under s. 30 of the Act can lawfully take place only in the case of such offences. The learned trial judge was therefore, in my opinion, incorrect in directing the jury to acquit each of the accused, and the verdict of not guilty entered by the jury in consequence of that direction should be set aside.

McCARTHY J:

I have read the judgment of Walsh J and I agree with its conclusion and the reasons therefor. I have but one comment to add.

The learned trial judge cited in full the long title to the 1939 Act as part of his elaborate enquiry into its true construction. His reliance on the long title, if reliance it was, has been challenged by the Director of Public Prosecutions on this appeal, the contention being that the true canon of construction is that it is only where there is apparent ambiguity that recourse may be had to the long title, citing in support of this proposition the observations of Henchy J in a divisional court of the High Court in Minister for Industry and Commerce v Hales, from which Griffin J has cited in his judgment in the instant appeal. In Hales’s case there was patent ambiguity and Henchy J said ‘In that state of uncertainty, I feel I am justified in drawing on the long title for such guidance as it gives on the matter.’ In England In re Wykes decd. Buckley J said

It is well established that the language of a statute must primarily be construed according to its natural meaning. If the language is ambiguous the long title of the Act may be looked at to help us resolve all of the ambiguity: it may not be looked at to modify the interpretation of plain language. The language of s. 1(1) of the Act [Charitable Trusts (Validation) Act, 1954] is, in my judgment (as in the view of Ormerod L.J.) clear and unambiguous, and its operation cannot be in anyway controlled by reference to the long title of the Act.

In Northern Ireland in Galloway v Irish Sailors and Soldiers Land Trust [1950] N1 32, Andrews LCJ with whose view in this regard Sheil J expressly agreed said at p. 45:

In my opinion, therefore, the view presented by Mr. Patton on behalf of the appellant could not possibly at its highest do more than create a doubt or ambiguity of construction, in which case we are entitled to look for assistance at the words of the long title to the Act. The law in this respect does now accept it as different from what it was prior to 1854 when the practice of the House of Commons was altered by Standing Order 34, which for the first time authorised the House in Committee to amend the title. The title has now become a part, and an important part, of the Act (see judgment of Lindley MR in Fielding v Morley Corporation (1899) 1Ch 1. Whilst it is true that Lopes LJ in Powell v Kempton Park Racecourse (1897)2QB 242 stated it as his opinion that ‘the title is no part of the Act’, yet he adopted the view expressed by Jessel MR in Sutton v Sutton, that the title of an Act is always on the roll, and so may be looked at in order to remove any ambiguity in the words of the Act. To the like effect will be found the speech of Lord Moulton in Vacher and Sons Limited v London Society of Compositors [1913] AC 107 and the judgment of Atkinson J in Rex v National Arbitration Tribunal [1941] 1KB 584.

In East Donegal Co-Operative Marts Ltd. v Attorney General [1970] 1R 317, Walsh J in pronouncing the judgment of the Court, said at p. 341:

The long title and the general scope of the Act of 1967 [The Livestock Marts Act, 1967] constitute the background of the context in which it must be examined. The whole or any part of the Act may be referred to and relied upon in seeking to construe any particular part of it, and the construction of any particular phrase requires that it is to be viewed in connection with the whole Act and not that it should be viewed detached from it. The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from their context. Therefore, words or phrases which at first sight might appear to be wide and general may be cut down in their construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long title. Until each part of the Act is examined in relation to the whole it would not be possible to say that any particular part of the Act was either clear or unambiguous.

The judgment thereupon refers to the long title of the Act.

As in the United Kingdom, the long title is, having regard to the Standing Orders of Dáil Éireann, as much a part of the Act as any section thereof. Indeed, in – In re McGrath and Harte [1941] IR 68, Sullivan CJ, in delivering the judgment of the then Supreme Court, said:

The Emergency Powers Act, 1939, is (in the long title thereof), expressed to be ‘An Act to make provision for securing the public safety and the preservation of the State in time of war’, etc. The Emergency Powers Act, 1940, is expressed to be ‘An Act to amend the Emergency Powers Act, 1939, for the purpose of making better provision for securing the public safety and the preservation of the State in time of war’, and the Emergency Powers (Amendment) (No. 2) Act, 1940, is expressed to be ‘An Act to amend and to extend the Emergency Powers Act, 1939, for the purpose of making better provision for securing the public safety and the preservation of the State in time of war’. In our opinion these Acts are clearly expressed to be for the purpose of securing the public safety and the preservation of the State in time of war, and we see no reason for having this purpose stated in the enacting portion of the statutes. (p. 78).

There it was not a question of construction but of statutory compliance with constitutional requirements. Nonetheless, it tends to identify the importance of the long title. I share the view of Lord Simon of Glansdale, quoted by Griffin J, ‘it [the long title] is the plainest of all guides to the general objectives of a statute’. It is not, in my opinion, a question of ambiguity in the construction of particular provisions; it is a question of giving a schematic interpretation where such is the plain intent of the statute.

 

D.P.P. v. O’Shea

[1989] IECCA 1 (28 July 1989)

Finlay C.J.

Barron J.

Blayney J.

 

This is an application for leave to appeal against a conviction entered on the 20th November 1986 after a trial before the Special Criminal Court in respect of the offence of robbery which occurred on the 6th March 1986 and the offence arising out of the same events of having a firearm with intent to commit robbery.A number of grounds of appeal were entered on behalf of the Applicant but two only of those were proceeded with by Counsel at the hearing of this application, namely, grounds Nos. 7 and 8 which are in the following terms:

“7. The Court erred in law in ruling that no evidence was required from Chief Superintendent Ginty of the suspicion which grounded his signing of the Extension Order which led to the detention of the Applicant for a further period of twenty four hours.
8. The Court erred in law in refusing the application of the Applicant for a dismissal by direction at the close of the prosecution case on the ground that no, or no sufficient, evidence had been produced of the suspicion held or alleged to have been held by Chief Superintendent Ginty which grounded his signing of the Extension Order.”
The facts which are necessary to consider for the purpose of determining these two grounds of appeal are extremely limited, notwithstanding a lengthy trial and a large transcript. Evidence was given by Detective Sergeant Kevin Dillon that at 7.25 a.m. on the morning of the 8th April 1986 he arrested the Applicant under Section 30 o the Offences Against the State Act on suspicion of having committed a scheduled offence under the Act, being a scheduled offence under the Firearms Act and he conveyed him to Tralee Garda Station.

Chief Superintendent Sean Ginty who purported to make an Extension Order pursuant to Section 30 of the Act of 1939 gave evidence with regard to the making of that Order and the relevant portions of it are as follows:

“455. Chief Superintendent on the 8th April 1986 pursuant to Section 30 of the Offences Against the State Act, did you direct that the accused Mr. O’Shea be detained in custody for a further period of twenty-four hours commencing at 7.25 in the forenoon of the 9th April and expiring at 7.25 in the forenoon of the 10th April 1986?”
That is correct, my lord.

And do you produce that Order signed by you?

Yes, my lord.”

And then in cross-examination by Counsel on behalf of this Applicant the Superintendent was asked as follows:

“459. Superintendent, as far as Mr. O’Shea
is concerned what was your understanding of his position at 11.58 on the evening of the 8th April 1986? If you could manage without notes I would be obliged.

I had some discussions with the officers involved in the investigation and it was my opinion that it would be necessary to detain him for a further period of twenty-our hours and I directed accordingly.

w. 460. For what purpose?

For the purpose of continuing their interrogation.

461.Had you formed a view as to what his attitude to interrogation was at that point? Well I knew that the officers concerned in the interrogation felt that a further period of twenty-four hours would be necessary, especially having regard to the fact that he would be going to bed at 12 o’clock that night and the interrogation would not resume until the following morning. I was guided by the opinions of the investigation officers and discussed it with them by phone and I was satisfied that a further period of detention was necessary in the interests of the progress of the investigation.
463.Were you told how Mr. O’Shea was responding to interrogation up to that point, what attitude he was taking?
I knew in the course of the interrogation up to that point that he had taken a defiant attitude in the sense that he was not prepared to give an account of his movements. The gardai concerned in the investigation were satisfied that he had not given an account of his movements and they were satisfied that he had’nt spoken the truth up to that time.”

No other questions of any relevance were then asked on behalf of the Applicant and that concluded the evidence of the Chief Superintendent in respect of this Applicant.

At the conclusion of the evidence on behalf of the Prosecution, Counsel on behalf of the Applicant at the trial made an application to the Court for a direction or non-suit. The particular ground which is relevant to this appeal is thus accurately stated in the transcript by the presiding Judge in the Court in giving the ruling on that application:

“(iii) that even if the arrest and detention of the accused for the original period of twenty four hours is held to have been lawful, his continued detention pursuant to the Extension Order made by Chief Superintendent Ginty was unlawful because there was no evidence that the Chief Superintendent personally had formed a suspicion that the accused had committed a scheduled offence under the Firearms Act, and that that was his frame of mind at the time when he made the Extension Order.”
In dealing with that particular submission the Court stated as follows:

“The Court is satisfied that Divisional Chief Superintendents are entitled to accept and rely upon information furnished to them by senior officers under their command regarding criminal investigations in which such officers are involved and that they are entitled to make decisions bona fide based upon that information. The evidence of Chief Superintendent Ginty makes it clear that before deciding whether or not to authorise the extension of the accused’s detention for a further period of twenty-four hours he enquired from the senior officers concerned as to how the investigation was proceeding and why it was thought to be necessary that the interrogation of the accused should be allowed to continue beyond the original period of arrest. In the view of the Court the reasons which he was given fully justified his decision to extend the period of the accused’s detention for a further period of twenty four hours as provided for in subsection (3) of Section 30.”
The evidence necessary to be given in support of the extension of detention pursuant to Section 30 of the Act of 1939 has been considered by the Supreme Court in the case of The People at the suit of the Director of Public Prosecutions v. Dermot Byrne 1987 IR. In that case the Chief Superintendent who had signed the Extension Order concerned had died prior to the trial of the accused.

A specific challenge was raised by Counsel on behalf of the accused to the admissibility of any proof of the extension, having regard to the death of the Chief Superintendent. Counsel on behalf of the DPP sought to establish the making of the Extension Order by proving the document itself through the evidence of a member of the Garda Siochana who saw it being signed by the Chief Superintendent to whom the Chief Superintendent handed it. The Supreme Court held that such proof was not sufficient and could not be evidence which was necessary for the hearing of the making of a valid detention order.

In the course of his judgment in that case, Walsh J. stated as follows:

“If the Chief Superintendent had not died but had been in a position to come and give evidence in the case he would have come to the witness box and given evidence to the fact that he had signed the direction in question, would have identified it and would also have been required to give evidence to the effect that at the time of the signing he entertained the same suspicion as to the commission of the scheduled offence as that upon which the man purported to have been arrested and of the necessity for the purpose of the investigation of the alleged crime for his further detention.”
McCarthy J. in a judgment which agreed in its conclusions with Walsh J. (both of these judgments forming in effect the majority judgments of the Court) stated as follows:

“The real question, in my view, accordingly is whether or not there was evidence upon which a jury would be entitled to hold that Chief Superintendent Joy did at the time of giving the oral direction on the telephone to Detective Sergeant Murphy or of signing the written direction, suspect the accused of having committed an offence. True, if the Chief Superintendent were alive at the time of the trial Detective Sergeant Murphy would not have been permitted to give evidence of the oral direction nor any evidence of the state of the Chief Superintendent’s mind. True, if the Chief Superintendent were alive at the time of the trial, he could have been cross-examined as to the genuineness of his alleged suspicion. Is it not, however, a proper inference to draw from the oral direction and the signing of the written direction that the Chief Superintendent had the necessary suspicion? Omnia praesumuntur rite esste acta that an individual who had acted in a public capacity was duly appointed and has properly discharged official duties is common to criminal and civil proceedings. This presumption, however, is limited; there is a wide gap between a presumption in favour “` of the regularity of acts and against misconduct and bad faith and that degree of proof required not mere] in every criminal trial as such but also in every instance of what is on its face a breach of the constitutional right to personal liberty.”
This Court is satisfied, firstly, that a Chief Superintendent in approaching the question as to whether or not he will make an extension order pursuant to Section 30 of the Act of 1939 is entitled to and indeed must in common sense rely upon the information and opinions of his subordinate officers with regard to matters which have given them a suspicion as to the commission of an offence by a person who is being detained and as to the progress of the investigation of the crime in respect of which that suspicion exists and of the continuance of that suspicion, having regard to the investigation that has so far taken place.

All of these matters are, in the opinion of the Court, clearly contained, though in an abbreviated form, in the answers given by the Chief Superintendent upon being questioned as to his reasons for making the Extension Order. It is quite unreal and quite artificial in the view of the Court, to suggest that the answers which are shortly quoted in this judgment of the Chief Superintendent on examination and more particularly on cross-examination merely because they do not include the word “suspicion” could be construed otherwise than as indicating that he retained at the time he made this Extension Order a very definite suspicion of the guilt of the Applicant of the crime of use of firearms in respect of which he had been arrested and that he was satisfied, having regard to the information obtained by him from his subordinates, of the progress of their investigation that a further period of detention was necessary.

Notwithstanding the quite unqualified onus of proof ‘ which rests upon the prosecution in any case to establish its case beyond reasonable doubt, and notwithstanding the fact that there can never be any onus on the Defendant to establish any particular matter it is clear that if an answer such as the answers that are found in the transcript in this case are given by a witness which have a plain, reasonable meaning attached to them, that if Counsel on behalf of the accused wished to challenge that meaning or to put to it some particular qualification or exception that challenge must be raised or the proper meaning should be accepted by the Court. The Court is, therefore, satisfied that this application must be refused.

 

DPP v MC

[2014] IESC 28
JUDGMENT of Mr. Justice Fennelly delivered the 9th day of April, 2014.
1. The Director of Public Prosecutions (hereinafter “the Director”) has, pursuant to s. 34 of the Criminal Procedure Act 1967, referred to this Court a question of interpretation of s. 30(3A) of the Offences Against the State Act 1939 (“the Act of 1939”), as inserted by s. 21 of the Criminal Justice (Amendment) Act 2009. Section 34 of the Act of 1967 provides as follows:

(1) Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial judge, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination.
(2) The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add.

(3) The Supreme Court shall assign counsel to argue in support of the decision.

2. The question referred is necessarily one of law which has led to the acquittal of a person. In the present case, the respondent was acquitted by order of the Special Criminal Court on an interpretation of s. 30(3A) of the Offences against the State Act 1939.
3. The trial of the respondent took place in the Special Criminal Court over four days in November 2011 on a single count of unlawful possession of an explosive substance. The only evidence against him was a statement of admission made in answer to garda questions while he was detained pursuant to the provisions of the Act of 1939. On 29th November that Court gave its ruling acquitting him. The reason for the decision was that, in the opinion of the Court, the Respondent had been in unlawful custody when he made the statements of admission. The circumstances in which those statements were made needs, therefore, to be described.

4. On the 11th September 2010 the Respondent was arrested by a member of the Garda Síochána pursuant to s. 30 of the Act of 1939 on suspicion that he was a member of an unlawful organisation contrary to the provisions of s. 21 of that Act. This arrest followed a search of the respondent’s home during which the Gardaí discovered an electrical grinder and a quantity of ammonium nitrate, an explosive material. The respondent was taken to Monaghan Garda Station. He was introduced to the member in charge and detained. The member in charge was informed that the respondent had been arrested on suspicion of membership of an unlawful organization.

5. At first the respondent was questioned in relation to the membership charge. At a certain stage during his detention, he was informed that he was then going to be questioned in relation to the explosives that had allegedly been found at his home. Having initially declined to answer any questions, he changed his position and made a statement in which he accepted responsibility for possession of both the electric grinder and the explosive (ammonium nitrate). This was the evidence on which the prosecution relied.

6. Counsel on behalf of the Respondent argued that his detention had become unlawful at the point at which the Gardaí commenced to question him about an offence other than the one for which he had been arrested, namely membership of an unlawful organisation. Counsel argued that, if the Respondent was going to be questioned about another suspected offence, it was essential that the Gardaí comply with the provisions of section 30(3A) of the Act of 1939, which had not been done.

7. Counsel for the Director argued that compliance with s. 30(3A) was not required. The Gardaí, it was argued, had the right to question the respondent about any offence as long as they continued to hold the reasonable suspicion that he was a member of an unlawful organization.

8. The Court ruled that the Respondent’s detention for the purpose of questioning him about the possession of explosive substances, being an offence other than the one of which he had originally been suspected and which formed the basis for his arrest and detention, was not lawful, in the absence of compliance with the requirements of s. 30(3A) of the Act. The Court, therefore, ruled that the respondent’s confession was inadmissible.

9. It is in the context of that ruling of the Special Criminal Court, that the Director has referred a question of law to this Court. That question, corrected for a number of typographical errors, reads:

“WHEREAS the defendant stood trial before the Special Criminal Court on Bill of Indictment SCC 12/2010 charging one count of unlawful possession of an explosive substance contrary to Section 4 of the Explosive Substances Acts, 1883 as amended by Section 15 (4) of the Offences Against the State (Amendment) Act, 1998.
AND WHEREAS the admissibility of a confession (and the prosecution case) stood to be determined upon the Special Criminal Court’s construction of Section 30 (3A) of the Offences against the State Act, 1939 as inserted by Section 21 of the Criminal Justice (Amendment) Act, 2009 which provides

“(3A) If at any time during the detention of a person pursuant to this Section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed an offence (the “other offence’) referred to in subsection (1) of this section, being an offence other than the offence to which the detention relates, and –

(a) The member of the Garda Síochána then in charge of the Garda station, or
(b) (Not applicable)

has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained, but nothing in this subsection authorises the detention of a person for a period that is longer than the period which is authorised by or under the other provisions of this Section.”
AND WHEREAS the Defendant had been lawfully arrested on suspicion of membership of an unlawful organisation and the Special Criminal Court holding that the said suspicion still subsisted at the time he was interrogated in relation to the said offence of unlawful possession of explosives.

AND WHEREAS the prosecution submitted that the provisions of the said Section 30 (3A) only arose when the original suspicion justifying arrest and detention had dissipated.

AND WHEREAS the Special Criminal Court ruled that the provisions of the said subsection applied and as “there was no evidence from the member in charge relating to “reasonable grounds for believing” as referred to in the section “that the continued detention of the accused for the purpose of questioning him in relation to offences other than membership of an unlawful organisation and his questioning in relation to such other offences was unlawful.

AND THERE being no other evidence the Court directed an acquittal of the Defendant. The Director of Public Prosecutions pursuant to Section 34 of the Criminal Procedure Act, 1967 and without prejudice to the verdict, now refers the following question of law to the Supreme Court:

“Was the Special Criminal Court correct in its construction of Section 30 (3A) of the Offences Against the State Act, 1939 as amended by Section 21 of the Criminal Justice (Amendment) Act, 2009?”

10. The question referred is essentially a question of interpretation of s. 30 of the Act of 1939. It is essential to commence by setting out in their entirety the parts of the section which deal with powers of detention. Including sub-section (3A), inserted in 2009, those parts read:
(1) A member of the Garda Síochána (if he is not in uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of 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 or whom he suspects of carrying a document relating 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.
(2) Any member of the Gárda Síochána (if he is not in uniform on production of his identification card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.

(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours.

(3A) If at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed an offence (the “other offence”) referred to in subsection (1) of this section, being an offence other than the offence to which the detention relates, and—

(a) the member of the Garda Síochána then in charge of the Garda Síochána station, or
(b) in case the person is being detained in a place of detention, other than a Garda Síochána station, an officer of the Garda Síochána not below the rank of inspector who is not investigating the offence to which the detention relates or the other offence,

has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained, but nothing in this subsection authorises the detention of the person for a period that is longer than the period which is authorised by or under the other provisions of this section.
(4) An officer of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for a warrant authorising the detention of a person detained pursuant to a direction under subsection (3) of this section for a further period not exceeding 24 hours if he has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.

11. Section 30, therefore, authorises any member of the Garda Síochána firstly to arrest and secondly to detain in a Garda Station any person whom that member suspects of having committed an offence under the Act. The period of detention so authorised is a maximum of 24 hours. Any extension of that period requires the authority of a Chief Superintendent. That is all in connection with the offence in respect of which the arresting Garda held the original suspicion. Subsection (3A), since 2009, authorises the continued detention of a person so arrested and detained for the purpose of investigating suspicion that the person detained has committed another offence contrary to the Act of 1939, but on condition that the member in charge of the Garda Station forms the opinion that the further detention is necessary for the proper investigation of the other offence.
12. The Director, in her submissions, emphasises that there was clear evidence that the arresting member believed that the Respondent was a member of an unlawful organisation at the time he invoked the powers of arrest pursuant to section 30 of the Act and, crucially, that this suspicion persisted throughout the period of the Respondent’s detention. Her central legal submission is that that s. 30(3A) should be interpreted to the effect that, if the suspicion grounding the original arrest is dissipated during the currency of the s. 30 detention or if the detention of the suspect is no longer necessary for the proper investigation of the original offence, the Gardaí may continue to detain him for the remaining period of that detention for the investigation of another offence under the Act of which he is reasonably suspected at that time, provided the member in charge of the Garda station “has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence.” On the facts of the present case, the Gardaí continued to suspect the Respondent of the original offence of membership of an unlawful organisation. Thus, it is submitted, there was no obligation on the Gardaí to seek the authority of the member in charge to question him about an offence other than the offence for which he had been arrested.

13. The Director also submits that s. 30(3A) should be interpreted as being in pari material with a number of other statutory provisions which provide for detention on suspicion of commissions of offences of different types.

14. Part 4 of the Criminal Justice (Amendment) Act, 2009, which includes section 21 which inserts inter alia sub-section (3A) into s. 30 of the Act, shows, it is said, that the intent of the legislature was to bring some element of uniformity to the re-arrest and detention powers of the Gardaí under a number of statutes. That Part concerns amendments, not only to s. 30 of the Offences against the State Act 1939 but also to s. 2 of the Criminal Justice (Drug Trafficking) Act, 1996, section 50 of the Criminal Justice Act, 2007 and s. 4 of the Criminal Justice Act 1984. These three pieces of legislation authorise the arrest and detention for questioning of persons suspected of having committed certain crimes. The amendments made by Part 4 of the 2009 Act concern the circumstances in which a person may be re-arrested.

15. It is submitted, on behalf of the Director, that an examination of the provisions of s. 2, subsections 5 and 6 of the Criminal Justice (Drug Trafficking) Act 1996, section 50(6) and (7) of the Criminal Justice Act, 2007 and section 4(5A) of the Criminal Justice Act, 1984 (which was inserted by the Criminal Justice Act 1999), demonstrates that each provision allows for a person who was detained on suspicion of having committed a certain offence, to be further detained and questioned regarding another offence, where the suspicion on which the original arrest and detention was based no longer exists or where the continued detention of the accused is no longer required for the investigation of the original offence.

16. The Director relies on the following passage from David Dodd on Statutory Interpretation in Ireland (Tottel Publishing, 2008), p213:

“Where Acts are in pari materia, they are to be taken together as forming one system, and interpreting and enforcing each other. Understanding the other Act may aid in identifying the scheme established by the legislature and thus may aid interpretation of individual provisions. Where Acts are in pari materia, it is assumed that universality of language and meaning is intended.”
17. The Director’s argument is that the insertion of subsection (3A) in s. 30 of the Act of 1939 brings that legislation into line with the other provisions. The other sections provide for the release of the person when the suspicion or the need for investigation has gone but for the possibility of continued detention in a case where the Gardaí genuinely suspect him of committing another offence and wish to continue to detain him for the purpose of investigating, presumably by questioning him, in relation to his involvement that other offence. Thus, subsection (3A) should be read as applying only to cases such as those provided for expressly in the other acts and, therefore, not applying at all in cases where, as here, the original suspicion remains.
18. In this connection, the Director relies on the decision of this Court, particularly on the statement of Walsh J in People (Director of Public Prosecutions v Howley [1989] ILRM 629. That statement is as follows:

“It is already well established by the decision of this Court in The People v Kelly, that it is quite permissible for members of the Garda Síochána to put questions to a person in custody, under section 30 of the Act of 1939, in respect of offences other than that for which he was arrested….There is nothing in the decision of any Irish court to suggest that the lawfulness of the detention or, as in this case, the extension of the detention is dependent upon the offence or the suspected offence which is the occasion of the detention, being the dominant concern of the members of the Garda Síochána, when, as the occasion arises they may wish to question such detained person in respect of offence or offences other than that in respect of which the detention order was made”.
19. It is submitted that this is a clear statement of the law which must continue to form the basis for the Court’s interpretation of section 30(3A) of the Act of 1939.
20. The respondent submitted essentially that the words used in the Section must be given their ordinary and natural meaning, which is that the requirements of subsection (3A) must be complied with if the detained person is to be questioned concerning suspicion of commission of an offence other than the one in respect of which he was originally arrested and detained. That means that the member in charge must form the opinion that his continued detention is necessary for the proper investigation of the second or other offence.

21. The nub of the point, it is said, is that the law had been changed by the enactment of Section 30 (3A) of the Act of 1939, affected by the passing into law of s. 21 of the Act of 2009. The respondent accepts that, prior to the enactment of that section, the law was as stated in Howley. The position then was that, under s. 30 of the Act of 1939, a Garda with the requisite suspicion could arrest and detain a person for a given offence for a period of 24 hours. The detention could be extended by a Chief Superintendent for a further period of 24 hours. The person detained could also be questioned about other offences provided the arresting Garda still had a bona fide suspicion in relation to the original offence for which the person was arrested.

22. This position in law, it is submitted continued, in spite of the passing of the sections, which the Director says are in pari material with s. 30, namely s. 2(5) and (6) of the Criminal Justice (Drug Trafficking) Act 1996, s. 50(6) and (7) of the Criminal Justice Act, 2007 or s. 4(5A) of the Criminal Justice Act, 1984. While those enactments were in force contemporaneously with s. 30 of the Act of 1939, no provision was made for any role for the member in charge in respect of the detention or continued detention of a person detained under s. 30 of the Act of 1939.

23. The situation was changed by the insertion of subsection (3A) by of s. 21 of the Act of 1939. A role is allotted to the member in charge of the Garda Station in respect of the continued detention of a person detained under s. 30 where that person is suspected of having committed an offence different from that on which he was originally arrested and detained. The Respondent could not have continued to be detained in accordance with law for the purpose of questioning him about an offence other than that in respect of which he was originally detained without the intervention of the member in charge and that member having “reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence”.

24. The respondent responds to the submission of the Director that subsection (3A) applies only where the original suspicion which grounded the arrest has ceased and therefore that the original power to detain is at an end, by observing that this involves implying words and meanings into the section by reference to the use of provisions in other unrelated statutes. This would also involve departure from the normal rules for the construction of any statute and in particular the strict construction of a penal statute which affects the liberty of citizens.

25. The respondent does not accept that the Offences against the State Act 1939 can be construed as being in pari material with other statutes. That Act with its amendments has always being regarded by the Courts as forming a separate code with very different rules and procedures, when compared to ordinary criminal investigation.

Discussion and conclusion

26. It is not disputed that any statements of admission made by the respondent while he was in unlawful custody would be inadmissible in evidence against him. The Special Criminal Court founded its decision to acquit the respondent on its view that, at the relevant time, he had been in unlawful detention.

27. It is not in doubt either that s. 30 of the Act of 1939, being an incursion into the right of liberty of the individual must be strictly interpreted. Insofar as it lays down rules and procedures governing the arrest and detention of individuals the courts insist that they be properly and completely complied with.

28. The question of law which has been referred to this court by the Director poses a straightforward question of interpretation of s. 30 of the Act of 1939, in its amended form. More precisely, it asks whether the requirement imposed by subsection (3A), namely that the member in charge form the requisite opinion that the continued detention of the person is necessary for the investigation of a second offence, must be observed in every case. The Director argues that the subsection must be observed only in cases where the detained person is no longer suspected of the original offence or his detention is no longer considered necessary for its investigation. In other words, it need not be observed in a case where the original suspicion persists. Where the Gardaí to continue to suspect that person of committing the offence in respect of which he was originally arrested and detained, it is said, there is no need to observe the provisions of the subsection.

29. An Act of the Oireachtas is interpreted, at any given time, with all such amendments as have been made by the legislature. In the present case, it is appropriate to commence by looking at s. 30 as it was at the time of the facts relevant to this case. That means that it includes subsection (3A). Looked at in that way subsection (1) authorises a member of the Garda Síochána to arrest any person whom, inter alia, he suspects of having committed an offence under any provision of the Act. Subsection (3) authorises the person’s detention in a Garda Station for a period of twenty-four hours, which may be extended by a Chief Superintendent. Up to this point, it is clear that the person is being detained only in respect of the suspicion of having committed or being involved in the commission of the first offence.

30. Subsection (3A) then authorises the person’s continued detention, if a member of the Garda Síochána, with reasonable cause, suspects the person of having committed another offence. However, if that power is to be exercised, the member in charge of the Garda Station must have reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence. At the risk of oversimplification, in practical terms, the continued detention must be authorised by the member in charge.

31. The Director submits, however, that, even though the Gardaí are now embarking on the investigation of a new or other offence and the person’s continued detention is necessary to investigate that issue, both of which conditions apply here, there is no need to obtain the opinion or authorisation of the member in charge. The Director says that a distinction must be made. The requirement applies only where the suspicion of the original offence has, to use the Director’s phrase “dissipated” or there is no longer any necessity for the detention for the purpose of investigating the original offence.

32. The difficulty for this submission is that the subsection says nothing about it. On its face the subsection requires that the opinion of the member in charge be obtained in every case where the Gardaí embark on investigation of another offence. It seems to me obvious that, if the section stood on its own, without any reference to previous case law, the interpretation is that the opinion of the member of charge is a pre-condition to any continued detention for the purpose of investigating a different offence. A legislative requirement of that sort in a provision authorising the detention of a person would nearly always require to be strictly observed.

33. I can see a possible argument that, if the original suspicion persists, that could, on a narrow reading, suffice to justify the detention and that no further authority is required. However, regard must be had to the fact that the person is being detained on the authority of the State for the purpose of investigating a crime of which he is suspected, but in respect he must be presumed innocent. In the slightly different context of the continued detention of a person in custody pending the arrival of his solicitor at the Garda Station, Clarke J had this to say in his recent judgment in Director of Public Prosecutions v Gormley [2014] IESC 17, at paragraph 8.8:

“However, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect.
34. I would read subsection (3A) as requiring observation of the procedure it lays down in all the situations to which it refers. The person’s detention is authorised by s. 30 on suspicion of having committed an original offence and for the investigation of that offence. If the purpose of the detention is to be extended to include another offence, it is right to interpret the section as requiring that the member in charge be of opinion that his detention is also required in respect of that second offence. It would superimpose an additional requirement on the existing authorisation. To interpret it otherwise would deprive the provision of almost all meaning. In any event, the Director’s argument involves writing words into the provision which are not there.
35. I turn then to consider the implications of Howley. As the respondent accepts, that decision is clear authority for the proposition that, provided the person is genuinely being detained for the purpose of investigation of the original offence, the Gardaí may question him in respect of the suspected commission of other offences. What Walsh J said at page 635 of the Judgment was:

“On the findings of fact in this case the detention during the period of the extension of the original detention was in accordance with law because it was in respect of an offence which that Garda Síochána were genuinely investigating even though at the same time they were investigating and were even more interested in a much more serious offence and were questioning a detailed person in respect of that more serious offence. In my view, therefore, at all relevant times the detention in question was in accordance with law and insofar as the admissions and statements of the appellant depend for their admissibility on the lawfulness of that detention they were admissible.”
36. However, the Court in Howley was not interpreting a section which contained subsection (3A). If I am right in my view that the amended section clearly requires the intervention of the member of charge before the detained person is questioned in relation to another offence and thus his continued detention is required in relation to the investigation of the other offence, the Court would have decided Howley differently if the amended section had been before it.
37. This does not mean that Howley was not correctly decided. It merely follows from the fact that the section, in its present form, did not exist and was not interpreted in Howley.

38. Finally, I turn to the Director’s submission that s. 30(3A) should be interpreted in the light of a number of statutory provisions said to be in pari materia with it. Those provisions are s. 2 of the Criminal Justice (Drug Trafficking) Act, 1996, section 50 of the Criminal Justice Act, 2007 and s. 4 of the Criminal Justice Act 1984. Each of these provisions authorises the detention of persons suspected of having committed offences. The Act of 1984 authorises detention for investigation of any offence for which the maximum penalty is a term of imprisonment for a term of five years or more. The Act of 1996 relates to drug trafficking offences and that of 2007 to a number of serious offences including murder. Each of these Acts provides separately for particular periods of detention and for their possible extension. While s. 4 of the Act of 1984 provides that, if at any time during the detention of a person pursuant to the section, there are no longer reasonable grounds for suspecting that he has committed an offence in respect of which he is detained, he is to be released from custody forthwith. Each of the other provisions says the release is to take place if “there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence to which the detention relates.” Thus it is only in the case of the Act of 1984 that the release takes place on the “dissipation” of the suspicion.

39. Section 50 Criminal Justice Act 2007 authorises detention in connection with the investigation of serious offences, including murder. Subsections 6 and 7 provide:

“(6) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence to which the detention relates, he or she shall, subject to subsection (7), be released from custody forthwith unless he or she is charged or caused to be charged with an offence and is brought before a court as soon as may be in connection with such charge or his or her detention is authorised apart from this Act.
(7) If at any time during the detention of a person pursuant to this section a member of the Garda Síochána, with reasonable cause, suspects that person of having committed an offence to which this section applies, other than the offence to which the detention relates and the member of the Garda Síochána then in charge of the Garda Síochána station has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of that other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained.”

40. As I understand the argument for the Director, this provision should aid the interpretation of s. 30. It is true that subsection (3A) was introduced into s. 30 only in 2009. It is also true that it contains a provision involving the member in charge in authorising an extension of the detention which is similar to that contained in s. 50 of the Act of 2007 and, indeed, to other statutory provisions. It is suggested that the statutory intent in s. 30 as amended should be interpreted in the light of those other sections. Those sections contain express provision for release in the event that either the original suspicion is “dissipated” (the Act of 1984) or detention is not necessary for further investigation. However, s. 30 has at no time, either prior to or subsequent to amendment, contained either form of provision.
41. For a number of reasons, I cannot accept that the different statutes should be treated as being in pari materia. This is not a case of a single body of legislation dealing with one subject. The Oireachtas has legislated separately for the detention of persons suspected of having committed different types of offences. While there are many similarities, there are also differences. Each of the provisions deals with a different type of offence; each provides separately for a period or periods of detention, some similar, some different; in the case of s. 30 of the Act of 1939, the opinion of the arresting garda alone is sufficient to justify both arrest and detention, whereas, in the case of the other three provisions, the opinion of the member in charge is required; officers of different rank, whether inspector, superintendent or chief superintendent are required to either to authorise or extend the period. It does not appear to me that the principle of interpretation of provisions in pari material applies. The Oireachtas did not enact a single piece of legislation dealing with detention of suspects. It legislated separately for detention on suspicion of having committed different types of offence. It did not, it seems to me, intend that the provisions of one Act should be read into the other.

42. I do not, in particular, accept that the Court should read provisions of other statutes dealing with the detention of suspected persons into the Offences against the State Act.

43. I would answer the question referred by saying that the Special Criminal Court was correct in its interpretation of s. 30(3A) of the Offences against the State Act 1939 as amended by s. 21 of the Criminal Justice (Amendment) Act 2009.

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

1. Introduction
1.1 The entitlement of An Garda Síochána to arrest persons suspected of crime and, in certain circumstances permitted by law, to question such persons is a vital part of the criminal justice process. However, it is equally true that a very high constitutional weight attaches to the rights of all citizens to their freedom so that it is more than appropriate that the courts exercise vigilant scrutiny on questions concerning whether arrest and detention are legally valid. It is, of course, also the case that the question of the validity of a person’s custody can have a bearing on the admissibility of evidence obtained during that custody for the jurisprudence of the courts in this jurisdiction stretching back at least to Director of Public Prosecutions v Kenny [1990] 2 I.R. 110 makes clear that evidence obtained during constitutionally unlawful custody will not be admitted save in exceptional circumstances. The issues which arise on this appeal concern one particular aspect of the arrest regime which applies in respect of certain types of offences and which permits arrest and questioning of suspects during custody.

1.2 The defendant/respondent (“Mr. C.”) was arrested on suspicion of membership of an illegal organisation viz the I.R.A. His arrest followed from a search of his home on the 11th September, 2010, which commenced at a time when he was not present but continued after his return. An electrical grinder and ammonium nitrate were found in a shed at the side of the house.

1.3 At a point during his custody, Mr. C. was informed that the questioning would turn from issues concerning membership to the explosives which had been found at his home. At a subsequent stage, he admitted responsibility for those items. Evidence of that admission formed an essential part of the prosecution case at his subsequent trial in which he was charged only with possession of explosives.

1.4 That trial took place before the Special Criminal Court which came to the view that the continued detention of Mr. C., subsequent to the change in questioning from interrogation related to a possible membership of the I.R.A. to one which related to alleged possession of explosives, was unlawful so that the admissions made occurred at a time when Mr. C. was in unlawful custody. While it will be necessary to consider the legal basis for that finding in some detail, the substance of the view formed by the Special Criminal Court was that s. 30(3A) of the Offences Against the State Act 1939 (“the 1939 Act”), as inserted by s. 21 of the Criminal Justice (Amendment) Act 2009 (“subsection 3A”) provided for a mandatory procedure which was to be followed when someone was to be questioned in respect of an offence other than the one for which they were originally arrested. It had been common case at Mr. C.’s trial that the relevant procedure provided for in subsection 3A had not been followed. The issue was as to whether subsection 3A actually applied. In the view of the Special Criminal Court, subsection 3A did apply with the consequence that Mr. C.’s continuing custody after there had been a change in the focus of his questioning, but in the absence of the procedures under subsection 3A having been complied with, was unlawful. It further followed that the admissions made by him after that time were inadmissible and an acquittal inevitably followed.

1.5 The prosecutor/appellant (“the D.P.P.”) has referred a question of law to this Court under s. 34 of the Criminal Procedure Act 1967, which question is set out in a notice of reference of question of law dated the 21st August, 2012. Such a reference is, of course, under the terms of the relevant legislation, without prejudice to the acquittal of Mr. C. The only issue which this Court has, therefore, to address is the question of law so referred. That question concerns the manner in which the Special Criminal Court interpreted subsection 3A. I, therefore, turn to that reference and the subsection.

2. The Reference, the Subsection and the Issue
2.1 The precise terms of the reference made by the D.P.P. are as follows:-

“WHEREAS the defendant stood trial before the Special Criminal Court on Bill of Indictment SCC 12/2010 charging one count of unlawful possession of an explosive substance contrary to Section 4 of the Explosive Substances Acts, 1883 as amended by Section 15 (4) of the Offences Against the State (Amendment) Act, 1998.
AND WHEREAS the admissibility of a confession (and the prosecution case) stood to be determined upon the Special Criminal Court’s construction of Section 30 (3A) of the Offences Against the State Act, 1939 as inserted by Section 21 of the Criminal Justice (Amendment) Act, 2009 which provides

“(3A) If at any time during the detention of a person pursuant to this Section a member of the Garda Síochána, with reasonable cause, suspects that person as having committed an offence (the “other offence’) referred to in subsection (1) of this section, be it an offence other than the offence to which the detention relates, and –
(a) The member of the Garda Síochána then in charge of the Garda station, or

(b) (Not applicable)

Has reasonable grounds for believing that the continued detention of the person is necessary for the proper investigation of the other offence, the person may continue to be detained in relation to the other offence as if that offence was the offence for which the person was originally detained, but nothing in this subsection authorises the detention of a person for a period that is longer than the period which is authorised by or under the other provisions of this Section.”
AND WHEREAS the Defendant had been lawfully arrested on suspicion of membership of an unlawful organisation and the Special Criminal Court holding that the said suspicion still subsisted at the time he was interrogated in relation to the said offence of unlawful possession of explosives.

AND WHEREAS the prosecution submitted that the provisions of the said Section 30 (3A) only arose when the original suspicion justifying arrest and detention had dissipated.

AND WHEREAS the Special Criminal Court ruled that the provisions of the said subsection applied and as “there was no evidence from the member in charge relating to “reasonable grounds for believing” as referred to in the section “that the continued detention of the accused for the purpose of questioning him in relation to offences other than membership of an unlawful organisation and his questioning in relation to such other offences was unlawful.

AND THERE being no other evidence the Court directed an acquittal of the Defendant. The Director of Public Prosecutions pursuant to Section 34 of the Criminal Procedure Act, 1967 and without prejudice to the verdict, now refers the following question of law to the Supreme Court:

“Was the Special Criminal Court correct in its construction of Section 30 (3A) of the Offences Against the State Act, 1939 as amended by Section 21 of the Criminal Justice (Amendment) Act, 2009?”
2.2 The issue, as has been pointed out, concerns the proper interpretation of subsection 3A. That subsection was inserted into the original s. 30 of the 1939 Act. Section 30 of the 1939 Act allows a member of An Garda Síochána without warrant to, amongst other things, arrest a person whom he suspects of having committed a scheduled offence for the purposes of that Act. Subsection (3) of s. 30 allows a person so arrested to be detained in custody in, amongst other places, a Garda Síochána station for a period of 24 hours, subject to an extension of a further period of 24 hours on the direction of an officer not below the rank of Chief Superintendent.
2.3 In the context of subsection 3A, and its construction as a whole, it is appropriate to add that subsection 3A(b) allows, as an alternative to the member in charge, the relevant opinion to be formed, where a suspect is detained other than in a Garda Síochána station, by an officer not below the rank of inspector who is not investigating the original offence. That provision had no relevance to the facts of this case because Mr. C. was detained in a garda station. However, it is of some relevance to note that subsection 3A provides, in different circumstances, for a different specified senior member of An Garda Síochána to form the necessary opinion. Subsection 3A thus allows continued detention where one or other of the members of An Garda Síochána specified at paras. (a) or (b) has reasonable grounds for believing that the continued detention of the relevant suspect is necessary for the proper investigation of what is called an “other offence” (which is defined as an offence other than the one to which the suspect’s detention relates). Subsection 3A provides that where a member of An Garda Síochána reasonably suspects a person in detention of having committed such an other offence, and where the specified senior garda forms the belief that continued detention of the suspect is necessary for the proper investigation of that other offence, detention may continue as if the other offence “was the offence for which the person was originally detained” subject to limitations to ensure that the system is not abused by being used to extend the overall period of detention.

2.4 There can be little doubt as to how that section works in a straightforward case. A suspect is arrested on suspicion of having committed one scheduled offence. In the ordinary way, there would clearly be an obligation on the arresting gardaí to release that person if, for whatever reason, they no longer had a suspicion that the suspect had committed the offence for which the arrest occurred. However, if, in the course of the investigation, the arresting gardaí, while coming to the view that there were no longer grounds for suspecting that the suspect committed the offence for which he was originally detained, nonetheless had reasonable grounds for suspecting the individual concerned in respect of another scheduled offence, then the machinery of obtaining the approval of the specified garda under subsection 3A must be complied with. Thus, in substance, the detention can be, as it were, transferred from the original offence in respect of which the arrest occurred to a new or “other” offence. Such a “transfer” can, of course, only occur if a senior specified garda has reasonable grounds for the necessary opinion in accordance with the terms of subsection 3A.

2.5 However, the case made on behalf of the D.P.P., both before the Special Criminal Court and before this Court, is that a different situation pertains where suspicion in respect of the new or “other” offence is not in substitution for a suspicion relating to the original offence but rather is in addition to the suspicion in respect of the earlier offence.

2.6 In that potential distinction lies the dispute between the parties to this case. Counsel for the D.P.P. argues that subsection 3A has no application to a case where the suspect remains the subject of a reasonable belief of having committed the original offence for which the suspect was arrested but where a member of An Garda Síochána in addition has a reasonable belief in respect of the commission of a second offence. Counsel for the D.P.P. argues that, in those circumstances, given that the original basis for the arrest still subsists, it is unnecessary to rely on the provisions of subsection 3A and that, therefore, the subsection has no application.

2.7 Counsel for Mr. C. argues that, on a proper construction of subsection 3A, same applies to any case where it is desired to continue detention in respect of another offence so that the relevant procedures must be complied with. In substance, counsel for Mr. C. argues that the regime provided for in subsection 3A is mandatory and does not, on its proper construction, permit, as counsel for the D.P.P. argued, an alternative justification for continued detention where suspicion in respect of an offence other than the original arises. Rather, it is argued, the procedure specified in subsection 3A (being that a specified senior garda has reasonable grounds for the necessary opinion) applies in any case where a person is suspected of having committed an “other offence”.

2.8 As was pointed out by counsel for Mr. C. in the written submissions filed, there are, essentially, two radically different interpretations of the application of subsection 3A argued before the Court. The issue is very net but, nonetheless, very important for it touches on the circumstances in which an individual may lawfully be deprived of their freedom.
3. Discussion
3.1 Counsel for Mr. C. was, of course, correct in suggesting that the alternative constructions put forward are radically different. It must also be acknowledged that the backdrop to the construction of subsection 3A is that it forms part of a penal provision and must be interpreted strictly. However, as MacMenamin J. pointed out in Delaney v. Judge Coughlan & ors [2012] IESC 40, a court is not precluded from applying common sense notwithstanding the undoubted obligation to construe penal measures in a strict fashion.

3.2 While there is a lot of detail to be found in the provisions of subsection 3A, the operative provision, in my view, is that, if the necessary conditions are met, the relevant person “may continue to be detained” (emphasis added). The subsection is, therefore, permissive, rather than mandatory in its terms. It allows continued detention in certain circumstances. The subsection is not structured in a way in which there is an express requirement that, in all cases where it is desired to conduct questioning in respect of an offence other than the offence for which the suspect was arrested, a senior specified garda must have reasonable grounds for the necessary opinion in accordance with the subsection. Rather the subsection permits continued detention on suspicion of a second or “other offence” when the appropriate opinion of that specified garda has been reasonably formed.

3.3 The backdrop to the subsection must be to consider what the legal position was before its enactment. A person could be arrested and detained under s. 30 of the 1939 Act for 24 or 48 hours if suspected of a scheduled offence. It must be taken to be implied into that regime that the justification for detention must remain in being or else the suspect must be released. If relevant members of An Garda Síochána no longer held a bona fide suspicion that the suspect had committed the offence in respect of which he was originally arrested, then it seems to me that there would, ordinarily, be a clear duty to release. While the section speaks of detention for 24 hours (extendable by a senior garda to 48 hours), it could not be interpreted as permitting the full period of detention to be justified if the underlying basis for the arrest in the first place had disappeared.

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

“It is already well established by the decision of this Court in The People v. Kelly [1983] ILRM 271, that it is quite permissible for members of the Garda Síochána to put questions to a person in custody under section 30 of the Act of 1939, in respect of offences other than that for which he was arrested… There is nothing in the decision of any Irish courts to suggest that the lawfulness of the detention, or as in this case the extension of the detention, is dependent upon the offence or the suspected offence which is the occasion of the detention being the dominant concern of the members of the Garda Síochána, when as the occasion arises, they may wish to question such detained person in respect of offence or offences other than that in respect of which the detention order was made.”
Both counsel agreed that the law, immediately prior to subsection 3A coming into force, was as stated in Howley.
3.5 I am satisfied, therefore, that the position which must be taken to have pertained immediately before subsection 3A was inserted into the 1939 Act by s. 21 of the Criminal Justice (Amendment) Act 2009 was that a suspect was entitled to be released as soon as the suspicion which justified an arrest in the first place has disappeared. I cannot see that there would have been any basis, provided that the original suspicion continued to be bona fide held, why the suspect could not be asked, during the relevant period of detention, questions about other potential offences. Whether the original suspicion continued to be bona fide held would, of course, be a matter of fact for the court of trial. Whether lengthy questioning which related solely to some other offence might give rise to an inference that the suspicion in respect of the offence for which the suspect was arrested either was never held or, if once held, was no longer held, is a matter of inference also for the court of trial. However, at the level of principle, and provided that the court of trial was satisfied that a bona fide suspicion in respect of the original offence continued to be held, then questioning in respect of other offences would not, it seems to me, have rendered the custody of the suspect in question unlawful in any way. It should be recalled that the reference from the Special Criminal Court in this case expressly records the view of that court that the suspicion of membership of the IRA (being the offence for which Mr. C. was originally arrested) “still subsisted at the time he was interrogated in relation to the said offence of unlawful possession of explosives”.

3.6 What then can it be said that subsection 3A was designed to deal with? It seems to me to be clear from the permissive nature of subsection 3A that it was designed to permit continued detention in cases where continued detention would not, otherwise, be lawful. In other words, it was designed to permit detention in respect of the second or “other” offence when the suspicion in respect of the first or original offence had disappeared, thus requiring, if subsection 3A were not there, the immediate release of the suspect concerned.

3.7 On that basis it seems to me that the purpose of subsection 3A is to permit, provided that the necessary procedures specified in the subsection are met, the continued detention of the suspect in question notwithstanding the disappearance of the suspicion which justified the original arrest. I am strengthened in that view by the fact that the continued detention is described in the subsection as being in relation to the “new” offence “as if that offence was the offence for which the person was originally detained”. In other words, after the procedures specified in subsection 3A are complied with, the suspect is no longer detained in relation to the original offence but is detained, in substitution therefor, in respect of the new or “other” offence. Such a situation does not arise where suspicion in respect of the first or original offence bona fide continues.

3.8 Likewise, the language of the subsection, if it had been intended to be mandatory and cover all cases including those where the original suspicion continued, would, in my view, have been different. The subsection could easily have said that, in any circumstances where part of the reason for the continued detention of a suspect involved a suspicion of an offence other than the one in respect of which the suspect was originally arrested, the procedures specified in subsection 3A are to apply. However, that is not the language used. The language merely permits continued detention if the procedures are followed. It does not require those procedures to be followed in all cases. The subsection is, in my view, permissive because it is unnecessary in cases where continued detention would, in any event, have been lawful.

3.9 It was submitted on behalf of Mr. C. that the construction sought to be placed on subsection 3A by the D.P.P. would suggest that subsection 3A did not really alter the law as it existed, under Howley, prior to the subsection coming into effect. However, for the reasons which I have sought to analyse, I am not satisfied that such is a correct analysis of the situation. Under Howley, it is clear that questioning for an offence other than the one in respect of which the suspect was arrested can occur but that the admissibility of any evidence thereby obtained is dependent on the suspect remaining in lawful custody which is, in turn, dependent on a bona fide suspicion remaining in being in respect of the offence in respect of which the accused was originally arrested. Subsection 3A has, therefore, a real effect in changing the law by permitting, in cases where the suspicion which justified the original arrest has disappeared, the suspect to remain in lawful custody, provided the procedures required by subsection 3A are met, for further questioning in respect of a new or other offence.

3.10 Likewise, counsel for Mr. C. argued that the construction sought to be placed on subsection 3A by the D.P.P. required reading something into the subsection which course of action ought not, it was argued, be adopted in respect of a penal statute. However, again for the reasons which I have sought to analyse, I am not satisfied that it is necessary to read anything into the subsection to give it the meaning contended for by counsel for the D.P.P. As pointed out, the section is merely permissive rather than mandatory. The subsection speaks of the custody, in substance, transferring from one which is in relation to the original offence for which the arrest occurred to one which is in relation to the new or other offence. On that basis I am satisfied that the natural or ordinary meaning of the subsection is as contended for on behalf of the D.P.P.

3.11 For those reasons I am satisfied that the argument put forward by counsel on behalf of the D.P.P. is correct and that the Special Criminal Court was incorrect in the approach which it adopted to the lawfulness of the detention of Mr. C.
4. Conclusions
4.1 For those reasons, I am satisfied that the question of law referred to this Court by the D.P.P., under s. 34 of the Criminal Procedure Act 1967, should be answered as follows:-

“The Special Criminal Court was incorrect in its construction of s. 30(3A) of the Offences Against the State Act, 1939, as amended by s. 21 of the Criminal Justice (Amendment) Act, 2009.”
4.2 I have come to that view most particularly because, for the reasons already analysed, I am satisfied that the Special Criminal Court was incorrect in concluding that subsection 3A applied and was required to be complied with in cases where the suspicion which underlay the original arrest of a suspect still bona fide subsisted. This view is, of course, because of the provisions of s. 34 of the Criminal Procedure Act 1967, without prejudice to the acquittal by the Special Criminal Court of Mr. C.

The People (Director of Public Prosecutions) v Brendan McCaffrey

Court of Criminal Appeal

30 July 1984

[1986] I.L.R.M. 687
(Henchy, Gannon and Egan JJ)

3
HENCHY J

delivered the Judgment of the Court on 30 July 1984 saying: The applicant in this application for leave to appeal was convicted and sentenced to ten years’ imprisonment on each of four counts in the Special Criminal Court on 28 October 1983. The counts in question related to possession of firearms, control of firearms, false imprisonment and unlawful seizure of a vehicle. In this application, which relates to the convictions and not to the sentences, only one ground of appeal has been argued, namely that there was no adequate evidence that the applicant had been duly arrested pursuant to s. 30 of the Offences against the State Act 1939. It is common case that proof of such arrest was necessary to establish the jurisdiction of the Special Criminal Court to try the applicant.

For the purpose of s. 30 it was for the prosecution to show that the arresting member of the Gárda Síochána suspected the applicant of having committed one of the offences to which the section relates. The submission made on behalf of the applicant is that it was not shown that such suspicion existed.

The relevant evidence was as follows. The arresting member of the Gárda Síochána, Sergeant Balfe, said in his direct evidence that he arrested the applicant under s. 30 on suspicion of having committed a scheduled offence, namely having possession of a firearm and ammunition with intent to endanger life. In cross-examination he agreed that he had no suspicion of his own with regard to the applicant. This statement was elaborated on by him in re-examination when he said in effect that the source of his suspicion was a direction to him from Chief Superintendent McNally, the gárda officer in charge of the investigations, to arrest the applciant on suspicion of having committed a crime which had involved firearms and ammunition. This was borne out by Chief Superintendent McNally when he came to give evidence.

In the light of that evidence, counsel for the applicant argued that all that was proved was that Chief Superintendent McNally had the required suspicion, whereas what was required under s. 30 was evidence that Sergeant Balfe had that suspicion when he made the arrest, and that that evidence was wanting at the trial.

The court is unable to agree with this interpretation of the evidence given by Sergeant Balfe. His exact words on direct examination were:

I arrested [the applicant] under s. 30 of the Offences against the State Act on suspicion of having committed a scheduled offence.

It is true that he agreed under cross-examination that he had no suspicion of his own with regard to the applicant. But that is not the same as saying that he had no suspicion with regard to the applicant. It seems to the court that the effect of Sergeant Balfe’s evidence as a whole was that he arrested the applicant under s. 30 on suspicion of having committed a scheduled offence, that he himself was not the author of that suspicion, and that in fact it derived from the direction to arrest which he had got from Chief Superintendent McNally. The argument propounded on behalf of the applicant rests on the idea that the effect of the evidence was that while the chief superintendent had the required suspicion, the sergeant had not. In the opinion of the court, that is not a correct interpretation of what the sergeant said. He unambiguously stated that his purported arrest under s. 30 of the applicant was on suspicion that a scheduled offence had been committed. The fact that that suspicion derived not from the sergeant’s own mental processes but from the opinion of a superior officer made no difference for the purpose of the validity of the arrest. All that was necessary to show was that at the time of the arrest the sergeant had the required suspicion, however arrived at. The court is satisfied that the evidence given was sufficient to support the ruling of the Special Criminal Court that the requirements for a valid arrest under s. 30 had been complied with.

The construction put on s. 30 in support of the application involves the requirement that no member of the Gárda Síochána may make an arrest under s. 30 unless he has personally acquired, by investigation, sufficient information relative to the arrested person to warrant his suspecting that person of an offence to which s. 30 applies. It is a corollary of this reasoning that if a number of gárdaí involved in the investigation of crime or circumstances of the nature envisaged in s. 30 should individually form no suspicions on information personally obtained but collectively pass on all their information to a superior officer who, as a result, forms a suspicion concerning a particular individual, that that superior officer alone would be authorised by s. 30 to make the arrest. This conclusion may be qualified to the extent, however, that if such a superior officer designated or instructed any other member of the Gárda Síochána to make an arrest under s. 30, the Superintendent would have to furnish that member with sufficient of the collected information, whether confidential or otherwise, to ensure that the member would himself then form the suspicion corresponding to that already entertained by his instructing superior officer. Such an interpretation of s. 30 would be inconsistent with the declared objective of the Offences against the State Act 1939, namely, ‘to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State’. This interpretation of the wording of s. 30 necessarily follows from the submission that the suspicion upon which an arrest under s. 30 is authorised must be personal only to the member of the Garda Síochána by whom the arrest is made. As we find this submission unsound in law and unacceptable, the grounds of appeal which are dependent upon it must fail. The application must therefore be refused.

DPP v Connolly

[2018] IECA 201
JUDGMENT of the Court delivered on the 26th day of June 2018 by Mr. Justice Mahon

1. Having pleaded not guilty the appellant was tried by the Special Criminal Court over a period of fourteen days commencing on the 9th May 2017 and was, on the 1st June 2017, convicted of one count of being, on the 16th day of December 2014, a member of an unlawful organisation, to wit, an organisation styling itself the Irish Republican Army otherwise Óglaigh na hÉireann, otherwise the IRA, contrary to s. 21 of the Offences Against the State Act 1939 as amended by s. 48 of the Criminal Justice (Terrorist Offences) Act 2005. The appellant was sentenced on the 9th May 2017 to a term of imprisonment of three years to date from the 5th April 2017. The appellant has appealed his conviction.

2. On the date in question, the 16th December 2014, the appellant was seen in the company of a co-accused who was on that day found to be in possession of improvised explosive devices. The appellant was arrested and detained and refused to answer questions in relation to his alleged membership of the IRA in the context of questioning pursuant to s. 2 of the Offences Against The State (Amendment) Act 1998.

3. Twenty one grounds of appeal have been notified to this court. For convenience, and having regard to the approach adopted in the appellant’s written submissions, these grounds have been grouped together under the following headings:-

(1) Grounds 1 to 9 and 17:
The trial court’s refusal to examine privileged documentation grounding belief evidence pursuant to s. 3(2) of the Offences Against The State (Amendment) Act 1973.

(2) Grounds 10 to 13:

Belief evidence of Assistant Commissioner O’Sullivan.

(3) Ground 14:

Error as to fact.

(4) Ground 15:

Flawed circular approach to the evidence by the trial court.

(5) Ground 16:

Conclusions regarding accused’s attitude to section 2 questioning.

(6) Ground 18:

Mobile phone evidence (seizure of evidence).

(7) Ground 19:

Failure to withdraw case at close of prosecution case.

(8) Grounds 20 and 21:
Absence of evidence that conduct on the 16th December 2014 connected to IRA membership and verdict against weight of the evidence.

The trial court’s refusal to examine privileged documentation
4. Section 3(2) of the Offences Against The State (Amendment) Act 1972 (as amended) provides as follows:-
“Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.”
5. This is commonly referred to as belief evidence in membership prosecutions. In this case such evidence relating to the appellant was given by Assistant Commissioner Michael O’Sullivan. He gave evidence that it was his belief that on the 16th December 2014 the appellant was a member of an unlawful organisation. He stated in the course of his direct evidence:-
“..On the basis of confidential information available to me I believe that Michael Connolly born on the 20th of May 1971 of 64 Grange Park, Dundalk is within the State a member of an unlawful organisation styling itself as the Irish Republican Army otherwise known as Óglaigh Na hÉireann otherwise known as the IRA. And I believe that he, Michael Connolly, was a member of that organisation on the 16th of December 2014. I do not base this belief on any matter discovered during or subsequent to his arrest or on any statement, admissions or information in the course of his detention or this investigation.”
6. In the course of cross examination, Assistant Commissioner O’Sullivan said that the material or documentation on which he relied had come into his possession following the retirement of a colleague, Detective Chief Superintendent Kirwin.
7. A claim of privilege in respect of the said material was maintained. Prior to the commencement of these proceedings, in response to a request for access to that material by the appellant’s solicitor the claim of privilege was made for the first time in the course of the following written response to that request:-

“We are advised that Assistant Commissioner Michael O’Sullivan will be giving his statutory belief that Michael Connolly, 64 Grange Drive, Dundalk, County Louth is a member and was a member of an unlawful organisation styling itself as the Irish Republican Army otherwise Óglaigh Na hÉireann, otherwise the IRA on the 16th of December 2014 and will be making a claim of privilege in respect of his belief based on all the material in his possession and based on the following grounds (a) protection of life (b) the material relates to the security of the State (c) if the content of the material became known it might facilitate the commission of further offences or alert persons or illegal organisations are ongoing or future garda operations, (d) the material would likely be of assistance to members of unlawful organisations and criminals by revealing the methods employed in combating crime and terrorism. We confirm that this statement of evidence has been forwarded to you under cover of Notice of Additional Evidence dated the 20th April 2017.”
8. Further cross examination of Assistant Commissioner O’Sullivan brought repeated claims of privilege by him in relation to the material on which he based his belief of the appellant’s membership of an unlawful organisation.
9. Mr. Hartnett SC, counsel for the appellant, sought to challenge the claim of privilege made by the Assistant Commissioner. In the course of an exchange between himself and the trial court, Mr. Hartnett stated:-

“..you have to rule on this and you have to rule, keeping in mind that there must be fairness in the trial. And if this Court is going rule that, as is usual, somebody can get into the witness box and repeat the mantra that is repeated in every case, “I will not answer any questions whatsoever, even in the most general of terms, and that’s good enough for us.” Well, that is bringing the matter further down the road and it is an effective deprivation of cross examination and a fair trial. As I say, this is a very preliminary matter and we accept that of course issues of privilege may arise, that if there is documentation on the file from an informer, clearly we cannot see it, that it may have consequences but we cannot see it. Possibly if there is – well, there must be other examples. That is not what we are addressing at the moment. We are addressing a bland, general refusal to answer any questions in relation to collateral matters, whether the integrity and credibility of this opinion can be examined; that is why I quoted from the decision as given by the Court of Appeal in Donnelly.”
10. Mr. Hartnett went on to further state:-
“..the question arises, and I ask it rhetorically, do I have the right to cross examine? And I think the answer to that must be yes. Is the witness entitled to claim privilege in relation to some matters? The answer to that must be yes. The question arises here, does the question of privilege arise, that this Court must examine whether the question of privilege can arise in relation to a simple question as to for how long, over what period of time these observations or materials exist. In no way could that be a breach of privilege. He, the witness refuses to answer whether some of the material on the file comes from observations by the SDU, as opposed to “bobbies on the street” ordinary guards. Again, I ask on what basis – he who claims privilege in relation to that – how can that be privileged? I ask rhetorically, how can that be privileged?”
11. Miss Murphy BL on behalf of the respondent stated:-
“Well, just very briefly, I think it’s very unfair to characterise the evidence of the Assistant Commissioner as a bland assertion of privilege. He made specific references to specific concerns that he had, and that’s why he claimed privilege on those specific questions…In fact, he made specific references to concerns about information being used by a small oath-bound society, that this information could have consequences for concern individuals, or for methodology in relation to the investigation that was carried out.”
12. On Day 8 of the trial, an initial ruling was given by the trial court. It stated:-
“..The most recent issue of this trial is narrow and concerns whether the Court ought to compel further answers to various questions posed by Mr Hartnett to Assistant Commissioner Michael O’Sullivan in relation to his belief that the accused was a member of an unlawful organisation in circumstances where the assistant commissioner has asserted various forms of the public interest privilege over the matters which Mr Hartnett has sought to explore….
As the issue of fairness of trial is central to this submission it is important to locate Mr Hartnett’s cross-examination in the full legal context. The evidence in the case is the belief of the assistant commissioner and the evidence does not consist of the material upon which that belief is based. Obviously, in ordinary circumstances, the cross-examiner faced with admissible evidence of belief or opinion would be entitled to challenge the validity or accuracy of such evidence by reference to the nature, strength and depth of the material underpinning the said conclusion. Consequently, it is well recognised that claims of public interest privilege over the underlying material represents a considerable limitation for defence counsel in a system where guilt is determined pursuant to an adversarial contest.”

13. In the course of its lengthy ruling the trial court analysed the type of information sought in the course of cross examination of the Assistant Commissioner and in respect of the privilege claimed in respect of it. In the concluding portion of the ruling it stated:-
“Firstly in this case, the Court is satisfied that the circumstances are such as to give rise to a valid claim for privilege. Secondly, the evidence of the assistant commissioner was in fact subject to extensive probing on collateral issues. As a result, we know that the information is based on more than one source of information. We also know that the assistant commissioner has no personal knowledge of matters or personalities contained in the information leading to the formation of his belief. Consequently, we also know that although the assistant commissioner has considerable experience in the techniques of evaluating intelligence information, he did not have the benefit of applying those techniques to sources comprising live informants, if such sources there were.”
14. The trial court ruled that the privilege claims by Assistant Commissioner O’Sullivan were“valid and reasonable”. Leave was extended to Mr. Hartnett to raise further submissions on the topic as he saw fit and as the trial progressed.
15. Shortly thereafter, Mr. Hartnett again returned to the issue. He said:-

“Now, the reason I opened that to the court is because I have asked that counsel for the prosecution in this case, be given sight of this documentation so that, as minister for justice in the case, counsel could form a view as to whether there was material relevant to innocence, or relevant, should we say. And I have been informed that that is refused to counsel for the prosecution. So, that option is unfortunately not available in this case. And this of course being a case where the judges are the jury, there remains the difficulty of allowing the judge or judges to see the material in question because of potential prejudicial effect, which cannot really be examined by the defence. But in view of the refusal to allow counsel for the prosecution to see these matters, we’re left in a position where we have to ask that this Court view the material in question, in order to see whether there is a valid claim for privilege, or to see if there is material that is not privileged, or to see whether there is material which would be relevant to the innocence-at-stake exception. Now, I have to say we do that with grave reservations, because this – the three judges here – are not only judges of the law and the judges of whether something is privileged or not, but they’re also the judges of fact, and of course also in the light of the Court’s ruling this morning which I suppose is in effect a ruling that privilege applies…”
16. Ms. Murphy BL duly confirmed to the trial court that permission from the gardaí for her as prosecution counsel to view the documentation had been refused, citing“issues of security both kind of personal and national..”. This stance was the subject of exchanges between counsel for both parties and the trial court judges, and was specifically referred to by Hunt J. on Day 11, (page 1), when he observed that:-
“…Ms Murphy informed the Court that the gardaí were not willing to permit prosecution counsel to survey that material for that purpose, citing security and safety reasons…”.
17. The trial court noted that Mr. Hartnett had applied to it to direct prosecution counsel to read and evaluate the material, are, as it termed“…a less preferably alternative, that the court itself should review the material in relation to privilege issues with the Ward decision and the principles in mind”. The trial court specifically noted the“prosecution is apparently amenable to the court following the latter course”.
18. In relation to the issue of the documentation being viewed by prosecution counsel, the trial court ruled as follows:

“In relation to the issue regarding the Assistant Commissioner having considered the two cases that were opened we are of the view that we will not direct the prosecution or any of its agents to examine the material used by the Assistant Commissioner for the purpose of forming his opinion. That then gives rise to the issue as to whether the Court should examine the material. The Court appears on the basis of those authorities to have a discretion in relation to the matter and (it) has decided to exercise its discretion by not examining the material in question. That is the position as of now.. So, obviously that decision might be revisited depending on what twists and turns the case may take after this..”
19. The trial court was again pressed to itself view the documentation. Mr. Hartnett confirmed that he was“asking the court to examine it”. He said:-
“And we were asking the Court to adjudicate on the privilege claimed because we say that that is the function of the Court and we were saying that when it comes to a claim of privilege and adjudication that the prosecution does not have a discretion in the matter and we were also making the case that the prosecution were not objecting to that process in this case.”
20. The trial court ruled, again, that they were“..not looking at the material underlying his assertion and the formation of his opinion”. Later, on Day 10 of the trial, the trial court again raised the issue when its presiding judge, Hunt J., remarked:-
“One further question has been asked of the Assistant Commissioner and we have to take into account whether that changes our view in terms of potentially inspecting the underlying belief material, so we also have to decide that before anything..else happens.”
21. On the following day of the trial, a further lengthy ruling was made by the trial court on the issue. It declined“to invite the Director, her counsel or anybody else to carry out an inspection or evaluation of the material relied upon by the Assistant Commissioner informing the belief that he has offered to the Court”. The trial court went on to state as follows:-
“That leaves open the question as to whether in substitution for such an exercise, the Court should carry out its own review of this material in order to decide whether any of it should be disclosed to the defence or whether it discloses an “innocence at stake” issue.”
The trial court declined to examine the material itself. In the course of giving its reasons for so doing it stated:-
“.. In this case, the material in question is intelligence material which may come from disparate sources and may be in various forms. This Court individually and collectively has as little experience as the Director of Public Prosecutions or prosecution counsel or indeed any other counsel in evaluating and assessing such information. The Court is far less equipped than a senior and experienced police officer to understand the individual pieces of information, place them in context and draw the threads together in an appropriate fashion so as to thereby measure and evaluate the opinion offered by the assistant commissioner. The Court has concluded that this is not an exercise which it would be helpful to indulge in in this case.”
And
“..Once again, the more recent decision of the Supreme Court in Redmond v. Ireland has had an important effect on this trial. The result of that case is that the opinion of the assistant commissioner has absolutely no decisive effect in this trial, no matter how genuinely and profoundly it is held by him…Consequently, the significance and importance of the belief evidence in such a case is necessarily diminished by the absolute and unvarying requirement for independent confirmation that this Court has referred to in its previous ruling on this matter.. With that in mind, the Court does not feel that an inexpert and out of context analysis of intelligence material is likely to add anything to the ultimate requirement that the belief evidence be substantiated and confirmed by extrinsic evidence unequivocally indicating that the assistant commissioner’s belief is correct in relation to the accused as of the date in the indictment and inconsistent with any other reasonably possible hypothesis…”
22. A verdict of guilty was pronounced in the course of a lengthy and detailed judgment of the trial court on Day 14 of the trial, delivered by its presiding judge, Hunt J. It is clear from same that thebeliefevidence of the Assistant Commissioner was a significant contributing factor to the guilty verdict although, and in accordance with establishedjurisprudencethebeliefevidence was supported by other important evidence independent of it. The following extracts from the trial court’s judgment is illustrative of the extent to which the belief evidence featured in the trial court’s decision:-
“..The Court has exercised its discretion in the conduct of this trial not to examine the confidential intelligence material examined by the Assistant Commissioner prior to reaching the conclusion that he offered to the Court in the course of his evidence. In adopting this stance, the Court was influenced by the requirements set out by the Supreme Court in their Redmond decision that the belief evidence of an officer of or above the rank of Chief Superintendent be supported by some other evidence that implicates the accused in the offence charged, which is seen by this Court as credible in itself, and is independent of the witness giving the belief evidence.
… However, having considered all matters put to the Assistant Commissioner in the course of cross-examination, the Court accepts beyond a reasonable doubt the veracity of this witness and the fact that he holds the belief that he expressed in relation to the accused on the basis outlined in his evidence. The Court also accepts his assertion that he formed this belief on materials of the type and of the proportions set out in his evidence. The Court believes that he applied himself to his task in the careful manner required by the case law that the Court has already alluded to on a number of occasions during this trial, and the Court is able to conclude beyond reasonable doubt that the Assistant Commissioner honestly and genuinely holds the belief that the accused was a member of the IRA on the date in question, and that this belief is based on a range of confidential material in the possession of An Garda Síochána, and on his careful review and assessment of that material. It does not have a reasonable doubt as to the existence of the belief offered and held by the Assistant Commissioner.

.. In order to convict the accused, the Court must be satisfied beyond reasonable doubt that there is credible objective support underpinning the Assistant Commissioner’s belief evidence in relation to the accused. The Court must be satisfied that the prosecution has produced a combination of belief and other supporting evidence that leaves the Court with no reasonable possibility other than a conclusion that the accused was a member of an unlawful organisation on the relevant date, or should I say the unlawful organisation in question…”

23. The final two paragraphs of the trial court’s judgment were as follows:-
“The Court has reviewed the entirety of the evidence and has not found any fact or consideration in the conduct or inference evidence which is inconsistent with the premise of the belief evidence. On the contrary, the other two strands of evidence relied upon by the prosecution, taken in combination with the belief evidence, are of such weight as to point surely and inevitably to the conclusion that there remains no reasonable possibility consistent with the proposition that the accused was not acting as an IRA member on the morning in question. The bare repeated denials of membership at interview do not give rise, in the view of the Court, to a reasonable possibility that the events of that morning are explicable on some other basis.
In carrying out this overall survey of the evidence, the Court has remained cognisant of the continuing and evolving duty mentioned by the Supreme Court in W as to the exercise of its discretion not to review the materials referred to earlier in this trial. In view of the conclusion that membership is sufficiently and unambiguously established by the combined weight of the belief, conduct and inference strands of the evidence, the Court sees no reason to revisit the decision not to inspect the material relied upon by Assistant Commissioner O’Sullivan for the formation of his belief evidence. Accordingly, the Court therefore convicts the accused on the single count on the indictment.”

Discussion
24. The justification for maintaining secrecy and confidentiality of material and documentation on which a senior officer of An Garda Síochána bases his or herbeliefevidence requires little explanation. A claim of privilege in respect of such material by no means constitutes an automatic right of privilege. It will be a matter for the trial court to adjudicate on such a claim when made. In doing so the trial court will take on board various considerations including the protection of life (and in particular the lives of persons who have provided information to the gardaí and may be continuing to do so), the need to maintain secrecy in relation to ongoing criminal investigations, the protection of undercover garda operations and various other matters.
25. InD v. NSPCC[1978] AC171, Lord Diplock remarked as follows:-

“The rationale of the rule as it applies to police informers is plain. If theiridentity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal.”
26. In the course of the various arguments made on behalf of the appellant in relation to the issue of privilege and submissions made also on behalf of the respondent, a number of Superior Court judgments were referred to in some detail, and it is appropriate that a number of these decisions now be examined closely.
27. Belief evidence pursuant to s. 3(2) of the 1972 Act is clearly admissible in evidence in a prosecution for membership of an unlawful organisation. The constitutionality of that section was confirmed by the High Court (Costello J.) inO’Leary v. The Attorney General[1993] 1 IR. 102. It is now the accepted position however that belief evidence on its own will be insufficient to justify a conviction of membership. InDPP v. Kelly[2006] 3 IR 115, Geoghegan J. stated (at p. 122):

“It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone. In my view, that practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone. Equally commendable is the practice of the Director of Public Prosecutions of which the court has been informed, not to initiate a prosecution based solely on the belief evidence. These self imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial.”
28. Commenting on a judgment delivered by Keane C.J. inDPP v. Redmond(Unreported, Court of Criminal Appeal, 24th February 2004), Geoghegan J. stated:-
“I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the conflicting rights and interests can only be determined by the court of trial. The Chief Superintendent’s belief has no special status but is merely a piece of admissible evidence. As the Court of Criminal Appeal pointed out, although the Special Criminal Court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account the fact that the accused made a false statement to the gardaí and the other corroborating evidence of other witnesses particularly the evidence of Mr. David Mooney which was accepted.”
29. In his judgment inRedmond v. Ireland[2015] 4 I.R. 84, Charleton J. commented:-
“No guarantee within Article 38 is offended where such belief evidence is supported by some other piece of evidence or circumstance which supports the charge. The impugned subsection applies only: before the Special Criminal Court; where a written ruling is given explaining the reasons for relying on such evidence; on an offence of membership of an unlawful organisation; where the Government has made a proclamation that the ordinary courts are inadequate to secure the effective administration of justice; where the accused may in the ordinary way give evidence; where privilege may be claimed as to sources which are confidential, as in any other case, but which privilege is subject to review by the court of trial; where the nature of the offence charged is continuing, allowing a belief to build up over time; and where that belief may be challenged and may be the subject of rebutting evidence by the accused.”
30. Section 3(2) of the 1972 Act (as amended) was considered and analysed in detail by the Court of Criminal Appeal inDPP v. Donnelly, McGarrigle & Murphy[2012] IECCA 78, and more recently by the Supreme Court inDPP v. Connolly[2015] IESC 40.
31. In the instant case what is at issue is not the belief evidence of the Assistant Commissioner or its admission into evidence but rather the refusal of the trial court to view the material which Assistant Commissioner O’Sullivan claimed to base that belief for the purposes of determining whether the privilege claimed in respect of it was justified in relation to all or some of that material.

32. Understandably there will be reluctance on the part of an accused person facing a prosecution for membership of an unlawful organisation based on,inter alia, the belief evidence of a senior garda officer, to seek to disclose the content of such material on which such belief is based to judges who are also the trial adjudicators and thus risk contaminating their minds. However, it is a long established practice that claims of privilege in both civil and criminal cases are the subject of adjudication by the trial judge. The practice is based on the assumption and indeed the general acceptance that professional judges are quite capable of being exposed to such material and at the same time, where appropriate, excluding it from their minds when arriving at a decision on the substantive issues in a trial.

33. Authority in support of a practice for the review by the Special Criminal Court of materials in respect of which privilege is claimed in s. 3(2) cases is to be found inDPP v. Binead[2007] 1 IR 374 and the judgment of the Court of Criminal Appeal in the same case, [2006] IECCA 147.

34. In the Special Criminal Court in Binead the court itself applied the procedure of inspecting the documentation in respect of which the claim of privilege was made. The Court of Criminal Appeal approved this approach and rejected the argument that the accused was exposed to prejudice by the arbiter of fact reviewing potentially prejudicial material which was denied to the accused. In delivering the judgment of the Court of Criminal Appeal Macken J. said:-

“Turning now to the question whether the trial court did not guarantee a fair trial by itself reviewing the material furnished to it by the Chief Superintendent as is contended for on behalf of Kenneth Donohue, this court is also satisfied that the trial court did not in the present case, by carrying out such a review, infringe the right to a fair trial. The trial court followed the very full discretion vested in it according to the decision in Ward v Special Criminal Court, supra. The Supreme Court, in that case, dealt very fully with the question of the long established principle of informer privilege and the exception to it based on “innocence at stake.” Of particular assistance in the judgment of O’Flaherty is the following extract, which followed on from the analysis of the jurisprudence and the adoption of Canadian jurisprudence in which it is stated that “the right to disclosure is not to trump privilege”:

“They must both be accommodated and prosecution counsel has a key role in this concord. However, when it comes to a stage where there is any doubt on the matter, it will be essential to get the ruling of the trial judge. Sometimes the matter will be straightforward. No doubt, judges allow claims of privilege in routine cases day in and day out without ever examining any documents. Other cases – this may be one – will be more complicated and then the judge or judges (as in the case of the Special Criminal Court) will examine the documents. However, I do not think trial judges should feel that they have any obligation to look at documents in every case.”

In the present case, the trial court, on reviewing the material, concluded that there was nothing in it which would in any way assist either of the accused in proving their innocence, and found that the material constituted a good basis for the belief of the Chief Superintendent. Both findings clearly come within the ambit of the phrase “material which might be of assistance to a defendant”. If the trial court had found otherwise on either of these issues, it would undoubtedly have held differently… Further, while counsel for Kenneth Donohue accepts that the European Court of Human Rights has itself reviewed files, he contends that that court considers that the court dealing with guilt or innocence cannot itself carry out any monitoring or investigative role. It is not at all clear from the case law of that Court that any of the judgments relied upon by counsel in this case deal with the issue of a claim to privilege based on a threat to life or to the ongoing security of the State, as here. None appears to deal with a situation where the investigative role in criminal matters, as in this jurisdiction, is not dealt with by a judge, unlike the position in many civil law jurisdictions. The position is particularly different where judges sitting without a jury, such as in the Special Criminal Court, have long experience in removing from their consideration material or evidence which may have been admitted in error, or opened to them, even inadvertently, or which has otherwise come to their attention. A typical example exists every time a trial court, and not just the Special Criminal Court, conducts a voir dire, a trial within a trial. There is the prospect that matters involved in the voir dire, even vexatious or potentially damaging matters may have to be banished from the judge’s mind as the case progresses, and judges do so meticulously and without difficulty every day. If they fail to do so, an appeal mechanism exists to remedy this.
35. InWard v. Special Criminal Court[1999] 1 IR 60, Carney J. remarked:-
“The Special Criminal Court will examine the forty statements concerned and determine whether any of them might help the defence case, help to disparage the prosecution case or give a lead to other evidence. On the basis of this examination, the Special Criminal Court will determine which, if any, of the forty statements concerned should be disclosed to the defence.
The members of the Special Criminal Court are all experienced in the criminal law, both as judges and practitioners. They have heard from counsel for the prosecution an opening speech in relation to the facts of the case. I am satisfied that they will be able to identify whether any of the statements concerned would help the defence case, would help to disparage the prosecution case or give the defence a lead. I am satisfied that counsel for the notice parties residual misgivings of possible prejudice from the court not been privy to his client’s instructions are at the minimum theoretical level of prejudice. This being so, they must yield to the risk to life as deposed by the Assistant Commissioner Hickey.”

36. It should be noted thatWardwas not concerned with belief evidence and was not a membership case. The facts in the case concerned the murder of Veronica Guerin and the issue of privilege claimed in respect of statements made in the course of the garda investigation.
37. In the course of the judgment of the High Court in Ward, Carney J. quoted with approval the following passage from the judgment of Costello J. (as he then was) inDirector of Consumer Affairs v. Sugar Distributors Limited[1991] 1 I.R. 225 when he said at p. 229:-

“When a claim is made, as it has been in this case, that it is not in the public interest that relevant documents in the Director’s possession should not be inspected, the court should examine the documents. If satisfied that they form part of a complaint made to the Director by a member of the public that a breach of the restrictive practices legislation or orders made thereunder has occurred inspection should not be allowed unless the court concludes that the documents might tend to show that the defendant had not committed the wrongful acts alleged against him.
I have followed this course in this case. The disputed documents were all documents forwarded to the Director as part of a complaint made by ASI International Foods Ltd. that breaches of restrictive practices legislation had occurred. They do not tend in any way to show that the defendant was not guilty of the wrongdoing alleged against it. I will therefore not allow their inspection.”

38. The issue ofbeliefevidence found its way to the European Court of Human Rights in 2013 in the case ofDonohoe v. Ireland(App no 19165/08) ECtHR 12/12/2013. In that case the applicant complained under Art. 6 of the Convention of Human Rights that his trial was unfair because of the non disclosure of the sources of the belief evidence of a Chief Superintendant without adequate counterbalancing measures. The ECtHR considered that the judicial review of the source materials to access their adequacy and reliability provided a safeguard in that case. Paragraph 88 of the decision states as follows:-
“The Court observes, at the outset, that the trial court was alert to the need to approach the Chief Superintendent’s evidence with caution having regard to his claim of privilege and was aware of the necessity to counterbalance the restriction imposed on the defence as a result of its decision upholding that claim. It proceeded to adopt a number of measures having regard to the rights of the defence.
Firstly, the court reviewed the documentary material upon which PK’s sources were based in order to assess the adequacy and reliability of his belief. While the Court does not regard such a review, in itself, to be sufficient to safeguard the rights of the defence (Edwards and Lewis v. the United Kingdom, cited above, at 46), it nevertheless considers that the exercise of judicial control over the question of disclosure in this case provided an important safeguard in that it enabled the trial judges to monitor throughout the trial the fairness or otherwise of upholding the claim of privilege in respect of the non-disclosed material (see McKeown v. the United Kingdom, no. 6684/05, 45, 11 January 2011).

Secondly, the trial court in considering the claim of privilege was alert to the importance of the ‘innocence at stake’ exception to any grant of privilege. It confirmed, expressly, that there was nothing in what it had reviewed that could or might assist the applicant in his defence and that, if there had been, then its response would have been different. The trial court was thus vigilant in exploring whether the non-disclosed material was relevant or likely to be relevant to the defence and was attentive to the requirements of fairness when weighing the public interest in concealment against the interest of the accused in disclosure..The Court considers that if the applicant had any reason to doubt the trial judges’ assessment in this regard he could have requested the appeal court to review the material and to check the trial court’s conclusions. However, he chose not to do so”.

39. In his judgment inRedmondCharleton J. referred extensively to the decision inDonohue. Immediately before doing so he stated:-
“Indeed, it has been commented by this court in Connolly v. Director of Public Prosecutions [2015] IESC 40, [2015] 4 I.R. 60, at para. 39, and by the European Court of Human Rights in the case of Donohoe v. Ireland..that courts of trial are alert to the need for caution. That is their function. Individual circumstances will vary but, for example, in that case before the European Court of Human Rights at para. 88 of the decision it was commented..”
40. Having quoted para 88 of the ECtHR decision, Charleton J. commented:-
“This passage acknowledges the safeguards that are inherent in Article 38.1 of the Constitution and which experience indicates are considered by the Special Criminal Court with special caution in the application of the impugned section of the Act of 1972.”
41. He went on:-
“In prosecutions for membership of an unlawful organisation, as in every other case, the overall fairness of the trial is within the command of the judges of the court of trial. Unfair trials are not acceptable under the Constitution..”
42. The importance of the counter balancing safeguards as noted by the EHCtR in Donohoe were emphasised by McMenamin J. in his judgment inConnollywhen he said, at para 36:-
“In light of the findings, the Court of Human Rights considered that the proceedings in their entirety were fair. The weight of the evidence, other than the belief evidence alone, combined with the counter-balancing safeguards and factors, was sufficient to conclude that the grant of privilege as to the sources of the Chief Superintendent’s belief did not render the applicant’s trial unfair. It followed, therefore, that there had been no violation under Article 6 of the Convention.”
43. At the risk of been repetitive, one of the counter balancing safeguards identified inDonohoewas that:-
“the court reviewed the documentary material upon which (Chief Superintendent) sources were based in order to assess the adequacy and reliability of his belief. While the Court does not regard such a review, in itself, to be sufficient to safeguard the rights of the defence..it nevertheless considers that the exercise of judicial control over the question of disclosure in this case provided an important safeguard in that it enabled the trial judges to monitor throughout the trial the fairness or otherwise of upholding the claim of privilege in respect of the non-disclosed material..”
44. In his bookThe Criminal Process, Professor O’Malley provides the following commentary (at p. 699):-
“…They have held that a court may confidentially review the disputed material without necessarily compromising the right to a fair trial. Indeed, it is noteworthy that in R v. H. the leading English authority on the matter, the House of Lords referred to the Irish approach as reflected in DPP v. Special Criminal Court as “principled but pragmatic”.(“They” is a reference to the Irish Courts.)
45. In circumstances where a court itself conducts an inspection of the material in question in order to ascertain whether the claim of privilege is appropriate the decision of Keane J. (as he then was) inBreathnach v. Ireland (No. 3)[1993] 2 I.R. 458 (at 469) provides helpful guidance. He said:-
“..the court, as I understand the law, is required to balance the public interest in the proper administration of justice against the public interest reflected in the grounds put forward for non-disclosure in the present case. The public interest in the prevention and prosecution of crime must be put in the scales on the one side. It is only where the first public interest outweighs the second public interest that an inspection should be undertaken or disclosure should be ordered. In considering the first public interest, it is necessary to determine to what extent, if any, the relevant documents may advance the plaintiff’s case or damage the defendants’ case or fairly lead to an enquiry which may have either of those consequences. In the case of the second public interest, the various factors set out by Mr. Liddy (the prosecutor) must be given due weight. Again, as has been pointed out in the earlier decisions, there may be documents the very nature of which is such that inspection is not necessary to determine on which side the scales come down. Thus, information supplied in confidence to the gardaí should not in general be disclosed, or at least not in cases like the present where the innocence of an accused person is not in issue, and the authorities to that effect, notably Marks v. Beyfus (1890) 25 QBD. 494, remain unaffected by the more recent decisions, as was made clear by Costello J. in Director of Consumer Affairs v. Sugar Distributors Ltd. [1991] 1 I.R. 225. Again, there may be material the disclosure of which may be of assistance to criminals by revealing methods of detection or combatting crime, a consideration of particular importance today when criminal activity tends to be highly organised and professional. There may be cases involving the security of the State, where even disclosure of the existence of the document should not be allowed. None of these factors – and there may, of course, be others which have not occurred to me – which would remove the necessity of even inspecting the documents is present in this case.”
46. The Supreme Court decision inMurphy v. Dublin Corporation[1972] I.R. 215 is also authority for the contention that there may be a responsibility on a court to examine materials to decide whether the inspection or refusal of inspection would do least harm to the public good.Murphyrelated to an issue concerning the compulsory purchase of lands in Dublin pursuant to the provisions of the Housing Act 1966. In his judgment, Walsh J. said:-
“Under the Constitution the administration of justice is committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution. Power to compel the attendance of witnesses and the production of evidence is an inherent part of the judicial power of government of the State and is the ultimate safeguard of justice in the State. The proper exercise of the functions of the three powers of government set up under the Constitution, namely, the legislative, the executive and the judicial, is in the public interest. There may be occasions when the different aspects of the public interest “pull in contrary directions” – to use the words of Lord Morris of Borth-y-Gest in Conway v. Rimmer [1968] AC 910,955. If the conflict arises during the exercise of the judicial power then, in my view, it is the judicial power which will decide which public interest shall prevail. This does not mean that the court will always decide that the interest of the litigant shall prevail. It is for the court to decide which is the superior interest in the circumstances of the particular case and to determine the matter accordingly. As the legislative, executive and judicial powers of government are all exercised under and on behalf of the State, the interest of the State, as such, is always involved.”
It is of course important to bear in mind the civil context of the Murphy case. This was specifically acknowledged by Walsh J. in the course of his judgment when he remarked:-
“A case such as the present one is far removed from the considerations which would apply in matters concerning the safety or security of the State…”
47. InEvidence In Criminal Trials, Heffernan and Ni Raifertaigh say, at p. 779/780:-
“The Irish procedure for asserting claims of informer privilege incorporates certain safeguards of which the European Union has approved, namely, it assigned to the trial court a supervisory role and enables the defence to make submissions and participate up to the point of revealing the protected information. Indeed, one might go further and predict that the European Court would look favourably on the approach endorsed by the Supreme Court in Ward v. Special Criminal Court and the procedure applied by the Special Criminal Court in People (DPP) v. Binead and Donohue whereby privileged information in documentary form was submitted to the court so that it could pursue and independent assess the cogency of the claim for confidentiality.
The conundrum is embodied in the typical case where the confidential information is not reduced in writing and the Irish courts respond to the assertion of privilege by restricting the defence’s right to cross examine the witness. Irish practice stop short of the kind of counter balancing procedures utilised in English practice such as special advocates and the questioning of witnesses by the judge in chambers. In the absence of an equivalent procedure, the compatibility of Irish law and practice with Article 6 may remain a complicated and contested issue which the jurisprudence of the Superior Courts have not entirely laid to rest. One relatively simple reform that could be considered is that a differently constituted Chamber of the Special Criminal Court would consider the basis for the Chief Superintendent’s opinion pre trial, so that at least the ultimate finder of fact is not the same panel of judges as the judges who have seen the material relied upon by the Chief Superintendent. This might also be considered in conjunction with the use of a procedure akin to the U.K. model of special advocate so that at least some advocate has the role of challenging the strength of the information upon which the Chief Superintendent’s opinion is based. Such changes would of course require legislation, however.”

48. The reasons given by the trial court in the instant case for their decision not to review the material in question included the following:-
(i) The trial courtindividually and collectively has as little experience as the DPP or prosecution counsel or indeed any other counsel in evaluating and assessing such information;
(ii) the trial court wasfar less equipped than a senior and experienced police officer to understand the individual pieces of information, place them in context and draw the threads together in an appropriate fashion so as to thereby measure and evaluate the opinion offered by the assistant commissioner;

(iii) the trial court did not feel that andan inexpert and out of context analysis of intelligence material is likely to add anything to the ultimate requirement that the belief evidence be substantiated and confronted by extrinsic evidence unequivocally indicating that the assistant commissioner’s belief is correct in relation to the accused…

49. The trial court however, consisting of three experienced criminal judges did have, individually and undoubtedly collectively, a wealth of experience in the evaluation and assessment of evidence in both civil and criminal cases and especially in the latter. While they were not police investigators or professional information gatherers and by definition less skilled than those trained in that work, they were nevertheless both individually and collectively experienced in almost all aspects of information analysis in the context of criminal proceedings and the administration of justice. Importantly also they were, individually and collectively, legally and judicially trained. Judges are frequently, both on the civil and criminal side called upon to evaluate, analyse and assess information and evidence relating to the most complex of subjects and often in circumstances where their past experience or exposure in dealing with such issues is very limited or indeed non existent. Many such instances arise in relation to information or material in respect of which privilege is claimed under one heading or another. A perceived or suspected lack of expertise in the subject matter to be reviewed is not itself a reason for a refusal to embark on the task, although conceivably it could trigger a decision to abandon the process following its commencement or qualify its outcome.
50. The right to request the trial court to view the documentation or material in question was undoubtedly available to the appellant. The right to request same has not often been exercised in the past and is probably unlikely to be frequently exercised in the future for obvious reasons. A trial court is not bound to conduct a review of such material simply because it is asked to do so. It has a discretion whether or not to do so, but must exercise that discretion judicially. InWard v. The Special Criminal Court[1999] (Supreme Court) 1 I.R. 60, O’Flaherty J. said:-

“No doubt, judges allow claims of privilege in routine cases day in and day out without ever examining any documents. Other cases – this may be one – will be more complicated and then the judge or judges (as in the case of the Special Criminal Court) will examine the documents. However, I do not think trial judges should feel that they have any obligation to look at documents in every case. That is why prosecuting counsel’s role is so critical. While the prosecution cannot appear to be a judge in its own cause, it is common case that the role of counsel for the prosecution is very different to the role of counsel for the defence. The role of counsel for the defence is always to put the prosecution to the proof of its case and seek by every fair and just means for the acquittal of their client. By contrast, counsel for the prosecution has an overall responsibility to assist in ensuring a fair and just trial…
…I would, however, vary Carney J.’s judgment to this extent. I would remove any direction to the Special Criminal Court as to whether the members of the court should examine some or all of the documents in debate. I would repose to the court’s full discretion how the trial is conducted and, in particular, to decide this matter. The judges may ask anew whether there is any point at all in looking at the documents in the second and third category. But I reiterate that the decision is for the members of the Special Criminal Court. It needs to be emphasised, however, that the duty that will devolve on the members of the court will be a continuing one as the trial develops and evolves. The members of the court will be astute, no doubt, to monitor the situation throughout.”

51. It is again relevant to note thatWardwas not a membership case (see earlier reference to the facts of that case).
Conclusion
52. The court is satisfied that in the particular circumstances of this case the reasons provided by the trial court for rejecting the request made on behalf of the appellant for the court itself to examine the documentation or material were insufficient to justify their refusal to do so. In arriving at this decision the court is particularly cognisant that the belief evidence given by the Assistant Commissioner and its acceptance by the trial court contributed in a significant manner to the verdict of guilty and conviction of the appellant.

53. Accordingly, the court will allow this ground of appeal. In these circumstances, it is unnecessary for the court to engage with the other grounds of appeal save to comment that none of them appear meritorious. The court will proceed to hear counsel on the question of whether or not there should be a re-trial.

Finnegan v. Member in Charge (Santry)

[2006] IEHC 79 (8 March 2006)

MEMBER IN CHARGE (SANTRY)
RULING DELIVERED BY MR. JUSTICE O’NEILL ON WEDNESDAY, 8TH MARCH 2006
This is an inquiry pursuant to Article 40.4 of the Constitution. Earlier today I directed that this inquiry should take place. The facts which are the substrata of this application are as follows and are not, apart from minor respects, in dispute.

The applicant was arrested at 10.55 pm on 5th March this year under Section 30 of Offences Against the State Act 1939. At the end of the 24 hour period of detention as provided for in the Act his period of detention was extended for a further period of 24 hours, and no challenge is made to the lawfulness of that extension.

Towards the latter part of his second period of detention a conference – and I accept Chief Superintendent Maguire’s evidence in this regard – took place to review the state of the investigation and a decision was taken to apply to the District Court pursuant to section 30(4) of the Act of 1939 as inserted by section 10 of Offences Against the State Amendment Act of 1998 for a further extension of the detention of the Applicant for up to 24 hours.

In addition to the Applicant in this case a similar decision was taken in respect of another person. Arrangements were made with the District Court and the relevant parties arrived down to the District Court. It appears that the case of the other man was taken first and that took some time. It was then after the conclusion of his case, which was a similar application to that being made in respect of this Applicant, that the application in respect of this Applicant commenced.

It was Chief Superintendent Maguire’s evidence that it commenced at 10.35, but I think he may have been slightly mistaken there. The warrant authorising detention which was issued by the District Court subsequently under the signature of the district judge recorded the application commencing at 10.26 pm, and indeed that is the time recorded by Ms. Banbury, the solicitor for the Applicant in this case. It may very well be the difference is explained by the fact that the clock in the court was fast. It is an immaterial difference no matter what way one approaches the case it would not make any difference in any event.

In the course of the application for this Applicant, which appears to have been conducted expeditiously, all of the relevant proofs which are required by section 30(4) were tendered, and this all appears to have been done with considerable expedition. Nevertheless it was not until 11.20 that the District Court made its order and issued a warrant authorising detention. That warrant is of extreme importance to the case and it reads, or the important part of it reads as follows:

“Whereas on the Applicant the application of 7th March 2006 by Superintendent Noel McLoughlin of An Garda Síochana, Coolock, Dublin 5 for a warrant, a warrant authorising the detention of Jeffrey Finnegan of 2 Rathfilly Drive, Finglas, a person who was on 5th day of March 2006 arrested under section 30 of the Offences Against the State Act 1939 and who is at present detained in custody pursuant to the provisions the sub-section three of that section I, a judge of the District Court, am satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously hereby authorise the Rathfilly Drive, Finglas for a further period not exceeding 24 hours, such a period to the commence at the expiry of section 30(3) of the Offence Against the State Act 1939.”
That is the end of that part of the order and it is signed by the district judge. Following upon that today, as I have already said, the Applicant sought an inquiry under Article 40.4 and I directed that inquiry.

The issues which arise as affecting the legality of the detention is whether the applicant was entitled to be released at 10.55 at the end of the 48 hour period and whether if he was, did that fact rob the district justice of jurisdiction to issue the warrant for his further detention at 11.20 pm.

The Applicant submitted that section 30(4)(c) makes clear that if the Applicant is not charged or is not directed to be released within the period of detention that he must be released on the expiry of the detention period.

It is submitted that a district judge has no power to extend the time period, it being a statutory time period.

It was further submitted that it did not matter that the Applicant was in court with a judge and lawyers, they could not protect his rights in this case.

It was further submitted that the district judge had no power to detain the Applicant after 10.55 pm, there being no charge against him. He had no power to in effect put him anywhere.

It was further submitted that the commencement of the proceedings within the period of detention was not sufficient as the hearing of the case could have gone on late into the night with perhaps judgment being reserved until the morning and during this period the district judge had no power whatsoever to detain the Applicant. It was further submitted that the periods of detention under section 30 are inextricably linked and if they lapse a further arrest is required which could only be for the purposes of charge or if it was brought within the provisions of section 30 A (1) as is inserted by section 11 of the 1998 Act.

It is further submitted that the jurisdiction to issue the warrant was entirely dependent upon the continuance of the detention period up to the time of the issue of the warrant and that you could not have a disconnection between the issue of the warrant and a period of lawful detention.

The Respondent submitted that that which may be unlawful can be cured, and they rely on the authority of the case of O’Brien v The Director of Public Prosecution 2005, 2 Irish Law Reports Monthly. Here the submission is made that the making of the order at 11.20 rendered lawful the detention continuously from the expiry of the previous period once there was compliance with the requirements of section 30(4) (a), (b) and (c), and in this case it was submitted that there was no case made, indeed it may have been conceded that these provisions were in fact complied with.

It is further submitted that all that was required was that the application be made within time, which it was.

Mr. O’Higgins pointed to the reality of the situation: The application was made in time, the district judge, to whom concerns were expressed about the passage of time, did not seem to think that it mattered as a significant factor.

It was further submitted that the State was obliged to go through all of the proofs in the case of this Applicant even though similar proofs were gone through in a previous case.

It was submitted that section 8(a) of the Criminal Justice Act 1984 as inserted by section 2 of the Criminal Justice Miscellaneous Provisions Act 1997 applies by virtue of section 9 of the Criminal Justice Act 1984, hence it was submitted that the time spent on the application in the district court was not reckonable in the 24 hour period and that as a consequence of that if one takes the time period as starting at 10.26 in effect the period of detention did not expire until 11.49.

It is further submitted by Mr. O’Higgins that the case of Lavole and Carvida Limited v District Justice O’Donnell & Others in which I gave judgment on 3rd March 2005 is to be distinguished because in that particular case there appears to have been an express interconnection between the period of 48 hours provided for there and the period which was in question.

The first issue which arises for decision is whether the period of lawful detention was initial on foot of the Act taken by a Superintendent of An Garda Síochana after the expiry of the first period of 24 hours, ie the second period of detention expired at 10.55 pm last night.

I am satisfied that it did. This is a statutory period of detention and like all statutory periods of detention it cannot be extended by court orders or by anything that the court can do. The only way there can be an extension of a statutory period of detention is by express legislative provision

In the course of the case of Claude Michael Joseph Lavole & Carvida Limited and District Judge John O’Donnell Ireland & Attorney General in which I delivered judgment on 3rd March 2005 I was confronted with a not dissimilar problem where a time period had elapsed during the course of the hearing of District Court proceedings, and I had this to say in relation to it at page 14:

“In reaching that conclusion I have formed the opinion that notwithstanding the commencement of the criminal proceedings, by the giving of evidence of arrest, charge and caution before the expiry of the 48 hour period and having regard to the reasons why the matter was not concluded then, but later in the day, that nonetheless it was not within the power of the district judge or indeed of anyone, either expressly or by implication from their conduct, to extend this statutory time limit.
In my view having regard to the nature of the time period involved it is simply not possible having regard to its statutory nature, to construe the statutory provision in question in the light of the circumstances that prevailed on 7th December regardless of how compelling they may be, so as to permit what would in effect be an extension of that time limit.”
Now I have said Mr. O’Higgins sought to distinguish that on the basis of the fact that the periods involved in that particular case has a different relationship to each other. In that particular case what was at issue were powers derived from s. 233 A and S. 234 of the Fisheries Consolidation Act 1959. In the course of my judgment in the case I reached the conclusion that the powers exercised under both of these sections were independent of each other, and hence the power to exercise the provisions of detention under the latter section, 234, could be exercised at a time after the expiration of the time limit in respect of the detention under the previous section.

There is no real comparison between these two statutory schemes, ie detention under section 233A or 234 of the Fishery Consolidation Act 1959 and dention under section 30 of the Act of 1939. Under the Offences Against the Person Act, there is no doubt in my view that the periods of detentions are inextricably connected to each other, where as the periods of detention I was concerned with under s. 233 A and 234 of the Fishery Consolidation Act involved powers which could be exercised independently of each other.

The real point that emerges or at least that is of relevance to this case arising from that judgment is that which I had to say about the extension of statutory time limits simpliciter. In my view it simply cannot be done. I don’t think there is anything novel in that proposition. In a variety of different circumstances it has been held many times in these courts that statutory time limits cannot be extended by the courts or indeed by anybody else. As I say what is required there to cure that situation is an express statutory provision.

I am satisfied therefore that the commencement of the proceedings in the absence of an express statutory provision, so providing, could not have prevented the expiry of the period of detention at 10.55 pm yesterday evening.

This brings me to the question of whether or not section 8(a) of the Criminal Justice Act of 1984 applies. Before going into that of course it can be observed that if a provision such as that applied it would indeed have cured the problem in this case because the period of detention would have gone on until 10.49, or thereabouts, comfortably past the time when the actual Order of the Court was made.

For the reasons which I will now go into I am satisfied that section 8(a) of the Criminal Justice Act 1984 does not apply. In approaching whether it does or it does not I must be mindful of the fact that I am dealing with criminal statutes that have to be construed strictly. What that means is that the language of the statute must be given its natural and ordinary meaning but a purposive approach is not appropriate.

Section 8(a) was inserted into the Criminal Justice Act of 1984 by section 2 of the Criminal Justice Miscellaneous Provisions Act of 1997. It is in the following terms, and it reads as follows:

“Section 2 of the Criminal Justice Act 1984 is hereby amended in section 4.”
Paragraphs A and B do not matter, the relevant paragraphs are C and D, and it reads as follows: “By the insertion after sub-section 8 of the following section:

“Where a person is detained pursuant to sub-section 2 is taken to a court in connection with an application relating to the lawfulness of his detention, the time during which he is absent from the station for that purpose shall be excluded in reckoning the period of detention permitted by this section.”
Then, and this is of significance, in sub-paragraph (d) it goes on to provide as follows:

“By the substitution in sub-section 9 of “sub-sections 6, 8 or 8(a) for “sub-sections 6 or 8.”
Section 9 of the Criminal Justice Act of 1984 is in the following terms, it reads as follows:

“Sections 4(8) 5, 6 (2) and 6 (3) shall apply with the necessary modifications in relation to persons in custody under section 30 of the Act of 1939 and to the powers conferred by section 7 of the Criminal Law Act 1976 as they apply to persons detained pursuant to section 4 of this Act.”
Of course what is clearly missing from the amendment here is a reference to the inclusion in Section 9 of the provisions of section 4(8)(a). That absence becomes quite crucial when one has regard to the fact that in another part of the Act there is a reference to the inclusion of section 8(a), ie in section 4(9). Sub-section 4(9) of the Act of 1984, is in the

following terms:

“To avoid doubt it is hereby declared that a person who is being detained pursuant to sub-section 2 in connection with an offence shall in no case be held in detention [whether for the investigation of that or any other offence] for longer than 12 hours from the time of his arrest, not including any period which is to be excluded under sub-section 6 or 8 in reckoning the period of detention.”
Now what is quite significant in my view is that Sub-section 2(d) of the Criminal Justice Miscellaneous Provisions Act 1997 amends section 4(9) by including an express reference to section 8(a), whereas the provisions of section 8(a) are not included for the purpose of an amendment of Section 9 of that Act. That is a very significant and express omission which this Court cannot ignore and in my view I am compelled to the view that section 8(a) is not imported into Section 9 of the Act of 1984 so as to affect a detention under section 30 of

the Act of 1939.

Thus I am satisfied that both in fact and in law the lawful periods of detentions expired at 10.55 pm yesterday evening.

What effect does this have on the Order made by the district judge? Can it be said, as was urged by Mr. O’Higgins for the Respondent that the illegality of the detention between 10.55 and 11.20 is cured by the subsequent order made at 11.20. Well firstly, in my view, it is not a question of curing the illegality of the detention. From 10.55 onwards, in my view, the Applicant was or ought to have been free to go. The real effect of the ending of lawful detention at 10.55 in my view is that the necessary jurisdictional basis for the granting of the warrant, had gone.

It is necessary prerequisite for the exercise by the District Court of its jurisdiction to grant an extension pursuant to section 30(4)(a) that there is a continuing lawful detention pursuant to section 30(3). If that is not there then the suspect is or ought to be at liberty and cannot in any way be said to be amenable to the jurisdiction of the District Court. That being so the District Court lacked any jurisdiction to make any order in relation to him, and specifically the jurisdiction to extend detention pursuant to section 30(4)(a). Because of this jurisdictional void the illegality of the detention after 10.55 yesterday evening could not be cured by the order of the district court at 11.20 and hence in my view the continuing detention of the Applicant remains unlawful and I must order his release.

END OF RULING