Surveillance

Cases

Kane v Governor of Mountjoy Prison

[1988] ILRM 724
Egan J
A complaint having been made on behalf of the applicant that he was being unlawfully detained, I held an enquiry into the matter pursuant to Article 40.4 of the Constitution.

The applicant was originally arrested under s. 30 of the Offences Against the State Act 1939, on suspicion of Garda Dermot Doran that he was a member of an unlawful organisation, namely the I.R.A. The arrest was at 1.12 p.m. on 23 November 1987. On that date a nationwide search had been commenced by the Garda Síochána in co-operation with members of the Defence Forces. The search was for unlawful supplies of arms and ammunition which might have entered the State.

In the course of this search a party of Gardai entered the home of one Thomas Joseph Cox near Moyne, Co. Longford where certain I.R.A. manuals, a sum of money and two sleeping bags had been found. The Gardai had information to the effect that two unknown men had left the home of Mr Cox and were probably in the locality. The search continued and two men, the applicant and a man subsequently known to be named Dermot Finnucane, were found hiding in the attic of a nearby house owned by one Anthony Kiernan. On the following morning (during the course of the applicant’s detention under s. 30 aforesaid) firearms and ammunition were actually found concealed in a burrow covered over with earth close to the home of Mr Cox.

Chief Superintendent Albert I. McDonagh signed an extension order pursuant to the 1939 Act and the applicant’s detention at Granard Station continued until 1.12 p.m. on 25 November 1987. Shortly before his release i.e. at about 1 p.m. Chief Superintendent McDonagh swore that he became aware for the first time that an application for a provisional warrant pursuant to the Extradition Act would be requested. He was so informed by Deputy Commissioner McMahon (who had already backed a full warrant relating to Dermot Finnucane). He then made arrangements for Superintendent Kelly to await a call from the R.U.C. in this regard. He was aware that the applicant had been actually released before he spoke to Superintendent Kelly. He stated that he was not aware at the time that the applicant might be an escapee from the Maze Prison.

Chief Superintendent McDonagh also swore that prior to the applicant’s release and prior to the time he became aware that there would be a request fromt the R.U.C. for a provisional warrant, he had given directions to Inspector Cullinane to have surveillance put on the applicant. He stated that he was not really concerned with what might have happened in Northern Ireland. He was primarily concerned with the applicant’s association with the firearms on Mr Cox’s property and he wanted to find evidence that would connect him with that crime.

Superintendent Kelly of Mullingar (already referred to) gave evidence that at 1.45 p.m. on 25 November 1987 (shortly after the applicant’s release from s. 30 detention) he received a phone call from Inspector Gaume of the R.U.C. requesting him to apply for a provisional warrant and he was given all relevant information. He was told that a full warrant had been obtained in the North from Mr Justice Basil Kelly and that it would be sent on. He typed out an information based on what he had been told by Inspector Gaume. He thought that he would have to apply for the provisional warrant in Cavan but it was not possible to get a District Justice in Cavan until later in the day after District Justice McArdle had received a request to come to Cavan that evening. The information was not sworn until 8 p.m. that evening and a provisional warrant was obtained from District Justice McArdle. By that time the applicant was in custody in relation to other alleged offences for which he had been arrested.

Superintendent Kelly had a discussion with the State Solicitor, Mr Thornton, and he decided that he would not execute the provisional warrant immediately. He would wait until the applicant was charged with the other alleged offences before the District Justice that evening and only execute the provisional warrants in the event of the applicant being released on bail in relation to the said charges. The applicant was, in fact, remanded in custody until the following day, 26 November 1987, on which date he was granted bail and released. Superintendent Kelly then executed the provisional warrant. The applicant was brought back into court and remanded in custody. Full warrants arrived from the North at a later stage and he is now in custody on foot of these. The warrants allege that having been convicted of an offence he escaped from lawful custody of the Maze Prison on 25 September 1983 and that having with others been indicted with the murder on the same date of one James Fenis, he failed to appear for his trial on 28 April 1987.

We will now return to his release from s. 30 detention at 1.12 p.m. on 25 November 1987. There is no doubt whatsoever but that he was subjected to intense surveillance from members of the Garda Síochána from that moment in time up to the time of his arrest later that evening. Soldiers were even involved for some of the period. On his release from Granard he decided to go to Cavan to see a solicitor. Members of the media were outside Granard station. A B.B.C. crew gave him a lift in a motor car to Cavan where he went to the office of Cormac D. Dunne & Co., Solicitors, arriving at approximately 2.25 p.m. The car in which he was travelling was followed by a Garda car. He was followed on foot by Gardai when he walked from the car to Mr Dunne’s office.

The applicant spent a few hours inside the solicitor’s office but there were also members of the Gardai inside. Inspector Lambe of Cavan gave evidence that he went to the solicitor’s office in the mid-afternoon and that two detective Gardai were there. He had with him a Mr Hall, a prison officer from Northern Ireland. Mr Ryan, a solicitor in the firm of Cormac Dunne & Co., told the inspector that he would have a word with Kane. Mr Ryan then beckoned them into his office and Mr Hall identified the applicant as the Paul Anthony Kane who had been in the Maze Prison in 1986. Mr Hall was not in a position to identify the applicant as a person who had escaped from the Maze Prison in 1983 as he himself had only been attached to the Maze since 1986.

A while later a Mr Brian McKeown (thought by the Gardai to be a leading member of the Provisional I.R.A.) entered the solicitor’s office and left there with the applicant who got into his car which was followed to Mr McKeown’s house in Swellen (about a mile outside Cavan). Shortly afterwards, the applicant and Mr McKeown walked into Cavan and back again. It is beyond dispute that they were followed all the way by members of the Gardai. Some of these were on foot and they walked in the main behind the applicant and Mr McKeown but occasionally one or maybe more walked in front of them and at all stages they were very close to the applicant and Mr McKeown. There were about six guards involved in the walk and there were also a couple of Garda patrol cars following. The surveillance was undoubtedly most thorough and the guards involved were from different places, Athlone, Mullingar, Cavan and Granard.

When the applicant and Mr McKeown arrived back at the house at Swellen, it was surrounded by several guards. Most of them were at the front of the house but one or two were down a laneway at the side of the house. A short while later the applicant emerged from the house with Mr McKeown, Mr Gerry Adams, MP, Mr Morrison and a Mr McAughey. They got into a car and Mr McAughey was the driver. The time was approximately 6.15 p.m. After a certain amount of confusion with which I do not consider it necessary to deal with, the car set off in the direction of Cavan with Garda cars following. An effort was made by the driver of another car to impede the pursuit of the Garda cars by zig-zagging across the road but eventually Garda Myles succeeded in passing it. The vehicles travelled past Swellen Bridge. Eventually the car in which the applicant was a passenger slowed down at a place called Lath. It had been trying to pass a large container but there was another car coming towards it from the opposite direction. A Garda car then passed out the applicant’s car and braked in front of it.

The applicant then ran through a hedge on the left of the road intending to get away from it all but, to his surprise, he fell into a ditch on the other side of the hedge which was dirty, slushy and deep to the extent that it was a few feet higher than his own height. Garda Myles jumped out and followed through the hedge and he also, to his surprise, ended up in the ditch. There is a confliction what happened then. Garda Myles alleged that he was assaulted by the applicant. The applicant on the other hand swore that Garda Myles put his hands around the applicant’s throat which had the effect of almost choking him. He also swore that Garda Myles punched him three times on the face. I accept Garda Myles’ version of what happened in the ditch. There is not a word in the applicant’s affidavit to suggest choking or punching by Garda Myles and these matters were not put to Garda Myles when he was being cross-examined by experienced counsel.

Garda Myles then informed the applicant that he was being arrested for causing a breach of the peace by assaulting him and the applicant was pulled and pushed out of the ditch and into a Garda car. He was then brought to Cavan station and was charged before District Justice McArdle with the assault and also with a charge of committing malicious damage to a watch owned by a Garda Leyden to the amount of £100. (I would have little or no doubt that if the latter charge even came to be tried it would be dismissed as the evidence in support of it appears quite inconclusive). District Justice McArdle had, as already stated, previously granted a provisional warrant under the Extradition Act but this had not yet been executed. It was however, executed the following day and the applicant was re-arrested after leaving court upon being admitted to bail in respect of the charges hereinbefore mentioned.

I see nothing sinister or illegal in the decision which was made to charge the applicant with the alleged assault offence in priority to executing the provisional warrant under the Extradition Act. A contrary view would require to be taken if the assault charge had no reality and had been so to speak ‘trumped up’ for the purpose of detaining the applicant.

It seems to me, therefore, that the real issue in this case is to consider the nature of what was done by the Garda authorities from the time the applicant was released from s. 30 detention at 1.12 p.m. on 25 November 1987 up to the time of his original arrest on the assault charge at about 6.20 p.m. on the same evening. If I am correct in this we are dealing effectively with a period of little more than five hours. The authorities call it ‘surveillance’. The applicant is reluctant to accept the concept of legal surveillance and argues that there is no right to require a person to submit to surveillance. He contends that if there is any degree of intrusion to be tolerated it must be kept to a minimum of what is required. It is contended that the intrusion in the present case was grossly excessive.

The applicant also seeks to draw a parallel between this case and that of State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 but the court had held in that case that there had been an unlawful detention for the purpose of securing the presence and availability of the applicant in that case for extradition proceedings. It is submitted in the present case that there was a similar plan by the authorities. Detention and surveillance are not, of course, the same thing. I think on the evidence judging in particular from the number of people involved who came from different places that there may well have been a plan to keep the applicant under surveillance so that they would know where he was when the provisional warrant could be obtained. I regret that the authorities were not more candid about the matter if my view is correct and I am also satisfied that there were inaccuracies in the evidence but these matters do not determine the issue to be tried.

There is little in the way of helpful authority on the extent of the right to surveillance. It would clearly be objectionable if there was no basis whatever to justify it. In the present case there was such justification which consisted of either:

(a) the expectation of an extradition warrant whether provisional or not, or

(b) the anxiety to follow the applicant to see if he would lead them to clues in respect of the arms which had been found and with which they associated him.

The latter alternative appears to me to be less likely than the former as, if it were the true purpose, one would surely have expected it to be more covert and discreet whereas, in fact, the surveillance was open and extremely obvious.

Despite the foregoing, I am satisfied that the applicant’s freedom of movement was at no stage curtailed while he was on foot. He was free to walk in any direction and nothing happened beyond the fact that he was watched. Even in respect of the journey by car prior to his jumping through the hedge, this car was eventually blocked from proceeding further. I am satisfied, however, that the purpose of this was not to arrest or detain the applicant but was directed to restraining the driver of the car from driving dangerously as had been the case.

The authorities had many opportunities during the relevant period to take the applicant into detention but they did not do so and I am quite satisfied that he would not have been arrested if he had emerged from the ditch without assaulting Garda Myles.

The application for release is accordingly refused.

SUPREME COURT
FINLAY CJ

(Henchy and Griffin JJ concurring) delivered his judgment on 11 May 1988 saying: This is an appeal by the applicant against the decision of Egan J in the High Court, delivered on 21 December 1987, after an enquiry had been had pursuant to Article 40.4 of the Constitution, determining that the applicant was being detained in accordance with law.

On the morning of 23 November 1987, a countrywide search was carried out by the Garda Síochána with the assistance of the Army, for unlawful arms, believed to be hidden by subversive elements and believed to represent a major threat to the security of the State. In the course of that search in County Longford, a house near Moyne was found to contain certain I.R.A. manuals and two sleeping-bags, and it was reported that immediately before the Gardai had arrived to search the house, two men who were unidentified were seen to leave it. In an immediately adjoining house upon a search being carried out, the appellant together with another man were observed hiding in an attic, and upon being seen by Gardai said ‘don’t shoot, we are unarmed’, came down from the attic and were both arrested pursuant to s. 30 of the Offences Against the State Act. The appellant was arrested on suspicion of being a member of the I.R.A. Upon being brought to Granard Garda Station after that arrest, the appellant for a period of approximately 24 hours refused to give his name or address or to answer any questions. At his request he was visited by a solicitor of his choice and subsequent to that gave his name, but refused to give any more detailed address than Belfast. On the morning of 24 November, firearms and ammunition were found concealed in a burrow, covered over with earth close to the house in which the I.R.A. manuals and sleeping-bags had been found, and therefore, close also to the house in which the appellant was found. The detention of the appellant pursuant to s. 30 of the Offences Against the State Act was duly extended by a certificate of the Chief Superintendent, and the appellant was eventually permitted to leave Granard Garda Station shortly after 1 p.m. on 25 November 1987.

The applicant was walking down the street of Granard, when he was spoken to by a lady representing the B.B.C., who was with a television crew. He apparently took a lift with her and her companions in the car which they were driving and was, at his request, driven to Cavan, a distance of about 30 miles. On their way, their car with all others was stopped at a Garda checkpoint, which was part of the overall search operation and upon the boot being examined and found to contain nothing of any harm was permitted to go on. The car in which the appellant travelled from Granard to Cavan was followed by two Garda cars.

On arrival at Cavan, at his own request he was dropped in the main street, and having spoken to a passerby, apparently enquiring for the office of some solicitor, he was directed to the office of a Mr Dunne. Mr Dunne’s offices were one of several different professional offices situated in a single building with common stairs and landings.

Upon the appellant entering that office, members of the Garda Síochána followed him, and remained on the stairs or landing, while other members of the Gardai remained on the street outside the front door.

The appellant remained for some time in the office where he was joined by a Mr McKeown who was a friend of his and who lived a short distance outside Cavan town at a place known as Swellen.

Later the appellant and Mr McKeown left the office together and drove in Mr McKeown’s car to his house in Swellen.

They were followed on that journey by two Garda cars, which upon arrival at the house were parked outside, and the guards who had been driving in them then surrounded the house, some members standing on the road in front of it and others down a lane way at the side of it, where they could have a view of the rear. None of the guards entered the house or sought to enter the house.

After a short time Mr McKeown and the appellant came out and walked together into Cavan town through some of the streets in the town and then back to Mr McKeown’s house. On this journey, the appellant was followed closely, by upwards of four to five Gardai on foot, and by at least two, and possibly three Garda cars. A number of photographs of this journey were taken by a freelance press photographer, and were available in evidence.

Having returned to Mr McKeown’s house the appellant and Mr McKeown were joined by Mr Adams and Mr Morrison of Sinn Fein, and by certain other people identified by Garda evidence as members or supporters of the Provisional I.R.A.

After a short time a group of four or five persons including the appellant left the house and started walking down the road towards the town of Cavan. After some distance they entered a car which was parked at an angle on the road and set off towards Cavan in the car, rapidly reaching a very fast speed.

As they did so, a car being driven by a Mr Carlin stated by Gardai to be a member of the I.R.A. was reversed backwards and forwards across the road in an attempt to prevent any Garda car from following. He was partly successful in this attempt, but one car driven by Garda Myles managed to get by, by climbing along the ditch.

Garda Myles, who was on his own in his car, followed the car in which the appellant was travelling, but was himself soon overtaken by Mr Carlin, who kept between him and the car in which the appellant was travelling and kept moving from side to side of the road, so as to prevent him keeping closer to the car in which the appellant was travelling.

On the evidence of Garda Myles, which was accepted by the learned trial judge, the car in which the appellant was a passenger and the car of Mr Carlin were then driven for some miles through Cavan town and its outskirts at very high speeds in an entirely reckless fashion, including inter alia, conduct which caused a number of pedestrians to have to jump off the surface of the roadway to the side thereof in order to escape injury.

Garda Myles passed out Carlin’s car when it went out of control through over-speeding at a corner and then after some further distance succeeded in passing out the car carrying the appellant, and stopping it by slowing down in front of it.

His intention in so doing was accepted by the learned trial judge as being to arrest the driver of that car for dangerous driving and to restrain him from driving dangerously any further.

The appellant jumped out of the back seat of that car and dived over a hedge at the side of the road. Garda Myles, who stated that he believed his primary duty was to keep the appellant in view, and that he was aware that other Gardai were then arriving at the scene, and could then deal with the driver of the car, jumped over the fence after the appellant. Both were apparently very surprised to find a deep drain into which they fell. Garda Myles swore that the appellant then assaulted him by punching him in the chest on a number of occasions. The appellant swore that Garda Myles, unprovoked, caught him around the neck and punched him in the face. Garda Myles then arrested the appellant for causing a breach of the peace and for assaulting him, and he was brought to Cavan Garda Station.

He was subsequently charged with (a) causing a breach of the peace, (b) assaulting Garda Myles in the execution of his duty and (c) malicious damage to a watch, stated to be the property of a Garda Leyden.

He was brought before the District Court in Cavan that evening on these charges and was remanded in custody to the following morning. On the following morning he was remanded on bail and on that release, was immediately arrested on a provisional warrant, issued by the District Justice pursuant to the provisions of the Extradition Act 1965. That provisional warrant was apparently followed by a full extradition warrant pursuant to which he is now detained.

The evidence clearly establishes that from an early stage after his arrest various members of the Gardai suspected that the appellant might be a person wanted in Northern Ireland on allegations of having been involved in serious crimes, possibly including the murder of a prison officer in an escape from the Maze Prison.

By the time of his release from Granard Garda Station on 25 November or very shortly thereafter, the Gardai were aware that the R.U.C. were seeking to transmit a warrant for the arrest of the appellant to be backed and executed pursuant to the Extradition Act.

Judge’s Findings of Fact and Legal Conclusions
Material to the issue arising on this appeal, the learned trial judge found the following facts.

1. That accepting the evidence of Garda Myles in preference to that of the appellant as to what occurred in the ditch, the appellant had assaulted Garda Myles.

2. That the appellant’s freedom of movement was at no stage curtailed while he was on foot and that the car in which he was travelling was only stopped for the purpose of restraining the driver from driving dangerously.

3. That the appellant would not have been arrested if he had emerged from the ditch without assaulting Garda Myles. On these findings, the learned trial judge concluded that the surveillance of the appellant was justified either

(a) on the expectation of an extradition warrant, whether provisional or not, or

(b) on the anxiety to follow the appellant to see if he would lead the Gardai to clues in respect of the arms which had been found and with which they associated him.

The learned trial judge concluded that the more probable purpose of the surveillance was the extradition warrant, and criticised some of the Garda witnessess for asserting that the real purpose was that set out at (b) above.

Having regard to this finding that an assault on Garda Myles did take place and that the arrest was bona fide, the learned trial judge held that the principles laid down by him in State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 and affirmed on appeal in this Court did not apply.

The Submissions on Appeal
Counsel for the appellant accepted that having regard to the learned trial judge’s finding of fact concerning the assault in the ditch, he could no longer contend as he had done in the High Court that the arrest was a device or was ‘trumped up’, as had been the foundation for the decision in the Trimbole case.

His submissions accordingly were:

1. The appellant was never truly released from custody on his being let out of the Granard Garda Station because the extent and nature of the overt surveillance of him maintained from then until his arrest that evening was consistent only with a continued detention of him.

2. Even if that submission were to fail, it is asserted that at least from the time of the appellant entering the solicitor’s office in Cavan and a Garda surveillance being mounted on that office, he was unlawfully brought back into detention and that he was therefore, at the time of his arrest in unlawful custody, a fact which must vitiate the legality of that arrest.

3. It was asserted that the extent and nature of the surveillance placed on the appellant constituted an unlawful harassment of him, representing an offence against s. 7 of the Conspiracy and Protection of Property Act 1875. It was said that as well as being a crime, this conduct which was unjustified and accordingly unlawful, was an invasion of the plaintiff’s constitutional rights of privacy and complete freedom of movement, and that since it continued right up to the moment of arrest it vitiated the legality of that arrest.

In support of this submission it was contended that the authority of the Garda Síochána to exercise surveillance in expectation of the arrival of an extradition warrant was much more restricted than their authority to do so would be for the detection or investigation of crime.

Conclusions
With regard to these submissions, I have come to the following conclusions.

1. I am satisfied that the contention that the appellant continued in the detention of the Garda Síochána from the time he left Granard Garda Station until the time of his arrest for assault must fail. The essential feature of detention in this legal context is that the detainee is effectively prevented from going or being where he wants to go or be and instead is forced to remain or go where his jailer wishes him to remain or go. When the appellant left the Granard Garda station, the evidence clearly establishes that what he wanted to do was to go to Cavan. He was free to do so and he achieved his purpose. There is no evidence of any description which could lead to the conclusion that any member of the Garda Síochána for any reason wished that the appellant would go to Cavan.

The single incident accordingly, of his taking the lift from Granard to Cavan in the BCC car irrespective of how many members of the Garda Síochána were observing or following him on the making of that journey, makes it impossible to infer from the evidence that his detention had not by then ceased.

2. The position from the time of his arrival at the solicitor’s office in Cavan remains, in my view, essentially the same, although the extent and nature of their surveillance altered. He, apparently, having consulted the solicitor, wished to see his friend, Mr McKeown, and to go with him to his home at Swellen. This he achieved. It is difficult to conceive again on the evidence that members of the Garda Síochána had any particular reason to wish, or did wish that he should do that. He subsequently decided to walk in and out of Cavan, that he achieved, and eventually, with a number of associates, including members of Sinn Fein and persons believed by the Gardai to be members of, or supporters of the Provisional I.R.A., left Cavan in a car for a destination which is not known. Again it would be wholly unreal to infer from the evidence that this journey was at the wish of the Gardai. Having regard to the findings of fact, made by the learned trial judge, it appears to me to be an inescapable conclusion that had the car in which the appellant was travelling, been driven in a safe manner it would not have been prevented from going to whatever the chosen destination was. If a person desiring to make a secret journey is permitted to go where he wants to, but his route and destination are made known by observation, he is not in law being detained.

3. I accept the submission made on behalf of the appellant, that as far as privacy is concerned, overt surveillance may under certain circumstances be more onerous than covert surveillance. This is not always true, and indeed, one can conceive of circumstances in which the reverse would be true. I would be prepared to assume without deciding for the purpose of dealing with this submission that a right of privacy may exist in an individual, even while travelling in the public streets and roads.

I would agree with the view expressed by the learned trial judge, that if overt surveillance of the general type proved in this case were applied to an individual without a basis to justify it, it would be objectionable, and I would add, clearly unlawful. Overt surveillance including a number of Garda on foot, closely following a pedestrian, and a number of Garda cars, marked as well as unmarked, tailing a driver or passenger in a motor car would, it seems to me, require a specific justification arising from allof the circumstances of a particular case and the nature and importance of the particular police duty being discharged.

Such surveillance is capable of gravely affecting the peace of mind and public reputation of any individual and the courts could not, in my view, accept any general application of such a procedure by the police, but should require where it is put into operation and challenged, a specific adequate justification for it.

The issue raised by this submission therefore, in my view, involves a consideration of all the proven circumstances, background and facts of the case, as well as a consideration of the duty being discharged by the police and the nature of the surveillance which was proved to have occurred.

I am satisfied that there are no grounds for the distinction sought to be drawn between the duty of investigating or detecting crime and the duty of executing an extradition warrant. The State has a very clear interest in the expenditure and efficient discharge of the obligations reciprocally undertaken between it and other States for the apprehension of fugitive offenders. A member of the Garda Síochána aware of the intended issue and backing of an extradition warrant has a clear duty to take reasonable steps to ascertain, where it probably can be speedily executed, when it is obtained. The view expressed by the learned trial judge as to the more probable reason for the surveillance, which was applied to the appellant is supported by the evidence, but does not, in my view, affect the question of the justification for this surveillance.

In this case the appellant was originally arrested in circumstances which led to strong suspicion

(a) he was a member of the I.R.A.,
(b) he had been in hiding, and
(c) he was associated with arms found near-by.
He was furthermore arrested, in the course of a countrywide search for arms, believed by the authorities to represent a major danger to the security of the State. For almost a day after his arrest he refused to give his name or address, despite an obligation imposed by the Offences Against the State Act to do so. When released, as he was in Granard, he was most unlikely for long to be on his own in seeking, as he was likely to do, to return to hiding. On the other hand, the likelihood then was that he would receive support and assistance by a tightly knit and efficient organisation of persons, who sympathised with him. That likelihood was, in my view, borne out by the facts as they eventually occurred.

Covert surveillance or even overt surveillance by a very limited number of persons following him at a discreet distance was most unlikely to be successful in keeping the Gardai aware of his whereabouts.

Consideration of the detailed evidence with regard to the events, which occurred between the appellant and his companions finally leaving the house at Swellen and his jump over the ditch at Lath indicates that notwithstanding the presence of possibly as many as ten or eleven guards of experience, who had available for their use up to three cars, that the car in which the appellant was travelling, was for most of its journey observed only by Garda Myles, who was very nearly on more than one occasion prevented from keeping it in sight.

Having regard to these considerations and to the nature of the duty which the Garda Síochána were carrying out on this afternoon, the extent and nature of the surveillance allocated by them to the appellant, was in my view, justified. I would accordingly dismiss this appeal.

McCARTHY J

(Hederman J concurring): In my view, the freedom of movement given to the appellant was limited so as to restrict his freedom of choice. The issue comes down to the question whether or not the gardai, who may lawfully ‘stake-out’ a premises which they believe will be burgled, or who may lawfully and overtly or otherwise follow a suspect with a view to investigating or detecting crime may lawfully do the same in the reasonable expectation of the arrival of a valid extradition warrant. The issue narrows further if, as I do, one concludes that overt surveillance, which, by definition, does not impede the freedom of choice of movement, is a lawful invasion of privacy to whether or not the overt nature of the surveillance can be equally so justified. May the State authorities, in effect, say to the individual sought under an anticipated extradition warrant:

You may go where you please but by our following you you will be unable to hide or to meet with people who might hide you because we understand an extradition warrant is on the way.

In my view, ordinarily, they may not. The duty of investigating or detecting crime is not the same as providing for the execution of an extradition warrant. The end result is as different in its nature as the surveillance may be. The critical matter is that the combination of interference with privacy and the impairment of freedom of choice of movement would be to provide for a circumstance that may never happen. Here the situation was quite different. A facsimile of the warrant had already been presented for ‘backing’; it was intended that the original would be ‘backed’ and would be available for execution within a very short time. The procedure under the Act had not merely been set in motion; it was reaching finality. In the circumstances the Garda action, following on the events as set out in the judgment of the Chief Justice, was not excessive and, therefore, not unlawful.

I agree that the appeal be dismissed.