25-minute delay in order meant Cleary case man freed

A Dublin man detained by gardaí in connection with their investigation into the murder of Donna Cleary in Coolock last Sunday was freed by the High Court on Wednesday night after it ruled his detention was unlawful.

Mr Justice Iarfhlaith O'Neill ruled that when District Judge James McDonnell made an order at 11.20pm on Tuesday extending the detention of Jeffrey Finnegan (26), Rathvilly Place, Finglas, Dublin, for another 24 hours, he did so unlawfully because Mr Finnegan's detention had expired at 10.55pm.

The courts have no power to extend a statutory period of detention unless there was specific legislative provision to that effect, the judge said.

Because there was no such legislation and because the situation had not been saved by certain provisions of the Criminal Justice Act, 1984, or the Criminal Justice Miscellaneous Provisions Act, 1997, which the judge ruled did not apply to arrests under Section 30 of the Offences Against the State Act (OASA), 1939, as amended by the OASA (Amendment) Act, he must direct Mr Finnegan's release.

Earlier, the judge was told by Chief Supt Peter Maguire of Santry Garda station that Mr Finnegan had been arrested under Section 30 of the OASA at a private house in the Curragh at 10.55pm last Sunday in connection with an investigation into the murder by shooting of a woman.

Chief Supt Maguire said Mr Finnegan was arrested on suspicion of the unlawful possession of a firearm at Adare Close, Coolock, at about 2.30am on March 5th. After his arrest, he was taken to Santry Garda station and arrived there sometime after midnight.

The court heard that Mr Finnegan was originally detained for 24 hours, which period was then extended by another 24 hours.

There was no dispute about the legality of the second 24-hour period. The challenge to the legality of his detention arose from an application to extend the second 24-hour period by a further 24 hours.

On Wednesday afternoon, Michael O'Higgins SC, for Mr Finnegan, applied for and secured an inquiry, under Article 40 of the Constitution, into the lawfulness of Mr Finnegan's detention.

The State argued the detention was lawful, in proceedings heard over four hours by Mr Justice O'Neill.

Chief Supt Maguire said that when he went to the District Court on Tuesday night seeking to extend the detention he was very conscious of the time, as the second detention period was due to expire at 10.55pm.

An application to extend the detention of another man also arrested in connection with the incident in Coolock was heard first and ended at about 10.20pm, Supt Maguire said.

He said he then drew the District Court judge's attention to the time, and expressed concern that if the case involving Mr Finnegan ran for some time, the period of detention might expire.

Supt Maguire said the judge had said he took a certain view of the matter once a person was before the court, and expected the parties to take account of that view.

While the judge had risen for a short period after 10.20pm, Supt Maguire said he had asked the solicitor for Mr Finnegan if she would agree that it was not necessary to again go through the legal proofs relating to the extension of time, but he procured no agreement to that effect.

Supt Maguire said all the witnesses were cross-examined and he called his last witness at 11pm. This witness, Chief Supt Noel McLaughlin, made the formal application for the extension of the detention. He drew the attention of the court to the time, which he noted from the courtroom clock, and asked that the time be recorded. The case concluded at 11.20pm, when the judge granted the order extending the detention for a further 24 hours.

In his High Court decision, Mr Justice O'Neill said it appeared the courtroom clock may have been a few minutes fast. This issue was irrelevant, the judge held, because the actual court order extending the detention was not made until 11.20pm, 25 minutes after the detention period had expired.

In his ruling, the judge said the application for a third 24-hour period of detention was heard by the District Court on Tuesday night. At 8pm, the District Court began hearing an application to extend the detention of a second man arrested in connection with the incident at Coolock, and it made an order extending that man's detention.

Mr Justice O'Neill said District Judge McDonnell began hearing the application to extend Mr Finnegan's detention at about 10.26pm. He was satisfied the necessary proofs were given and the judge made an order extending the detention at 11.20pm.

Because he was satisfied Mr Finnegan's detention had expired at 10.55pm, at which point Mr Finnegan must either be charged or freed, Mr Justice O'Neill ruled the district judge had no jurisdiction to make an order at 11.20pm extending the detention period. This was a statutory period of detention which could not be extended by court orders but only by express legislative provision, he said.

If the provisions of the Criminal Justice Act (CJA), 1984, and the CJA (Misc Provisions) Act, 1997, applied to this case, as the State contended they did, the situation would be saved because the relevant provisions allowed a period of detention to be suspended for the purpose of court appearances, the judge observed.

However, the judge ruled, those provisions did not apply in the case of a person detained under Section 30 of the Offences Against the State Act. This was "a significant and express omission" in the Acts which the court could not get over.

In fact and in law, he ruled, the detention period expired at 10.55pm on March 7th and the necessary jurisdictional basis for the order of 11.20pm extending the detention therefore did not exist.

Because of that jurisdictional void, the illegality of the detention could not be cured by the District Court stating that its order applied from the period when detention expired.

In those circumstances, Mr Justice O'Neill concluded, he must order Mr Finnegan's release.