Geoffrey Finnegan (applicant) v Member in Charge (Santry) (respondent)
Criminal law - Habeas Corpus - Detention - Statutory interpretation - Whether District Court warrant for the applicants further detention was lawful - Whether there could be a disconnection in time between the issue by the District Court of a detention warrant and the period of lawful detention - Whether the disconnection in time could be cured - Whether Section 4(8A) of the Criminal Justice Act 1984 applied - Offences Against the State Act 1939 (No. 13), ss. 30, 30(3), 30(4), 30(4A), and 30A.(1) - Offences Against the State (Amendment) Act 1998 (No. 39), ss. 10 and 11 - Criminal Justice Act 1984 (No. 22), ss. 4(8A) and 9 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No. 4), s. 2 - Bunreacht Na hÉireann, Article 40.4
The High Court (Mr Justice O'Neill); judgment delivered on March 8th, 2006
Section 4(8A) was not imported into section 9 of the Criminal Justice Act 1984 so as to affect a detention under section 30 of the Offences Against the State Act 1939. The real effect of the ending of the lawful detention at the end of the second period of detention was that the necessary jurisdictional basis for the granting of the warrant had gone. It is a necessary prerequisite for the exercise by the District Court of its jurisdiction to grant an extension pursuant to s.30(4A) of the Offences Against the State Act 1939 that there is a continuing lawful detention pursuant to s.30(3). If that was not there then the suspect is or ought to be at liberty and could not 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 the applicant, and specifically the jurisdiction to extend detention pursuant to s.30(4A). Because of this jurisdictional void, the illegality of the detention after the second period of detention could not be cured by the order of the District Court and hence the continuing detention of the applicant was unlawful.
The High Court so held in finding that the continuing detention of the applicant was unlawful and ordered his release.
Michael O'Higgins SC and Sean Gillane BL for the applicant; Mícheál P. O'Higgins BL for the respondent
Mr Justice O'Neill commenced his judgment with an account of the events which preceded the inquiry pursuant to Article 40.4 of the Constitution. Mr Justice O'Neill had earlier that day directed that the inquiry should take place. Mr Justice O'Neill then set out the facts which were the substrata of the application and which he stated were not, apart from minor respects, in dispute.
The applicant was arrested at 10.55pm on March 5th this year under s.30 of the Offences Against the State Act 1939. At the end of the 24-hour period of detention as provided for in the Act, the applicants period of detention was extended for a further period of 24 hours, and no challenge was made to the lawfulness of that extension.
Towards the latter part of the applicant's second period of detention a conference - and Mr Justice O'Neill stated that he accepted Chief Superintendent Maguire's evidence in that regard - took place to review the state of the investigation and a decision was taken to apply to the District Court pursuant to s.30(4) of the Act as inserted by s.10 of the Offences Against the State (Amendment) Act 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 at the District Court. Mr Justice O'Neill stated that it appears that the case of the other man was taken first and that that took some time. It was then after the conclusion of that man's case, which was a similar application to that being made on in respect of this applicant, that the application in respect of this applicant commenced.
It was Chief Superintendent Maguire's evidence that the application commenced at 10.35pm, but Mr Justice O'Neill stated he thought that Chief Superintendent Maguire 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 that the application commenced at 10.26pm, and indeed that was the time recorded by the solicitor for the applicant in this case. Mr Justice O'Neill stated that it may very well be that the difference is explained by the fact that the clock in the court was fast. Mr Justice O'Neill stated that it is an immaterial difference no matter what way one approached the case as it would not make any difference in any event.
Mr Justice O'Neill stated that in the course of the application for the applicant, which appeared to have been conducted expeditiously, all of the relevant proofs which are required by s.30(4) were tendered, and this all appeared to have been done with considerable expedition. Nevertheless it was not until 11.20pm that the District Court made its order and issued a warrant authorising detention. Mr Justice O'Neill stated that that warrant was of extreme importance to the case and quoted the important part of it as follows:
"Whereas on the application of March 7th 2006 by Superintendent Noel McLoughlin of An Garda Síochana, Coolock, Dublin 5 for a warrant, a warrant authorising the detention of Geoffrey Finnegan of 2 Rathvilly Drive, Finglas, a person who was on March 5th 2006 arrested under s.30 of the Offences Against the State Act 1939 and who is at present detained in custody pursuant to the provisions subsection (3) 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 detention of Geoffrey Finnegan of 2 Rathvilly Drive, Finglas for a further period not exceeding 24 hours, such a period to commence at the expiry of the period of detention authorised by s.30(3) of the Offences Against the State Act 1939."
Pursuant to that order, the applicant had sought an inquiry under Article 40.4, which was directed by Mr Justice O'Neill.
Mr Justice O'Neill stated that the issues which arose as affecting the legality of the detention were whether the applicant was entitled to be released at 10.55pm 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 the applicants further detention at 11.20pm.
The applicant submitted that s.30(4C) made it clear that if the applicant was not charged or was not directed to be released within the period of detention that he must be released on the expiry of the detention period.
It was also submitted that a district judge had no power to extend the time period, it being a statutory time period.
It was further submitted that the district judge had no power to detain the applicant after 10.55pm, 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.
The applicant further submitted that the periods of detention under s.30 of the Offences Against the State Act 1939 were inextricably linked and if they lapsed a further arrest was required which could only be for the purposes of charge or if it was brought within the provisions of s.30A.(1) as inserted by s.11 of the Offences Against the State (Amendment) Act 1998.
The applicant 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 one 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 could be cured, and relied on the case of O'Brien v. The Director of Public Prosecutions, 2 ILRM at p.444. The respondent submitted that the making of the order at 11.20pm rendered lawful the detention continuously from the expiry of the previous period once there had been compliance with the requirements of section 30 subsections (4), (4A), (4B) and (4C), and it was submitted that there had been no case made, indeed it may have been conceded that these provisions were in fact complied with.
It was further submitted that all that was required was that the application be made within time, which it was.
Counsel for the respondent 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 further submitted that s.4(8A) of the Criminal Justice Act 1984, as inserted by s.2 of the Criminal Justice (Miscellaneous Provisions) Act 1997, applied by virtue of s.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 took the time period as starting at 10.26 in effect the period of detention did not expire until 11.49pm.
It was further submitted by counsel for the respondent that the case of Lavole and Carvida Ltd v. District Justice O'Donell & Others (High Court, 3 March 2005, unreported), in which Mr Justice O'Neill gave judgment on March 3rd, 2005, should be distinguished because in that particular case there appeared to have been an express interconnection between the period of 48 hours provided for there and the period which was in question.
Mr Justice O'Neill stated that the first issue which arose for decision was whether the period of lawful detention was initiated on foot of the Offences Against the State Act 1939 taken by a Superintendent of An Garda Síochana after the expiry of the first period of 24 hours, i.e. the second period of detention.
Mr Justice O'Neill stated that he was satisfied that it did. This was a statutory period of detention and like all statutory periods of detention, it could not be extended by court orders or by anything that the court could do. The only way there could be an extension of a statutory period of detention was by express legislative provision.
In the course of the case of Lavole and Carvida Ltd v. District Justice O'Donell & Others in which Mr Justice O'Neill gave judgment, Mr Justice O'Neill stated that he was confronted with a not dissimilar problem where a time period had elapsed during the course of the hearing of District Court proceedings. Mr Justice O'Neill quoted from his own judgment as follows at p.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 December 7th regardless of how compelling they may be, so as to permit what would in effect be an extension of that time limit"
Counsel for the respondent, Mr Justice O'Neill stated, had sought to distinguish Lavole and Carvida Ltd v. District Justice O'Donell & Others on the basis of the fact the periods involved in that particular case had a different relationship to each other. In that particular case what was at issue were powers derived from sections 233A and 234 of the Fisheries (Consolidation) Act 1959. Mr Justice O'Neill stated that in the course of his judgment he reached the conclusion that the powers exercised under both of those sections were independent of each other, and hence the power to exercise the provision of detention under the latter s.234 could be exercised at a time after the expiration of the time limit in respect of the detention under the previous section.
Mr Justice O'Neill stated that there was no real comparison between the two statutory schemes, i.e. detention under s.233A or s.234 of the Fisheries (Consolidation) Act 1959 and detention under s.30 of the Offences Against the State Act 1939. Mr Justice O'Neill stated that there was no doubt in his view that under the Offences Against the State Act 1939, the periods of detentions are inextricably connected to each other, whereas the periods of detention he was concerned with under s.233A and s.234 of the Fisheries (Consolidation) Act 1959 involved powers which could be exercised independently of each other.
Mr Justice O'Neill stated that the real point that emerged or at least that was of relevance to the case which arose from that judgment was that which he stated about the extension of statutory time limits simpliciter. In Mr Justice O'Neill's view it simply could not be done, nor did he think that there was anything novel in that proposition. In a variety of different circumstances it has been held many times in the courts that statutory time limits could not be extended by the courts or indeed by anybody else. Mr Justice O'Neill stated that what would be required to cure that situation was an express statutory provision.
Mr Justice O'Neill stated that he was 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 10.55pm on Tuesday, March 7th, 2006.
This brought Mr Justice O'Neill to the question of whether or not s.4(8A) of the Criminal Justice Act 1984 applied. Before determining that issue, he stated that it could be observed that if a provision such as that applied it would indeed have cured the problem in the case because the period of detention would have gone on until 11.49pm, or thereabouts, comfortably past the time when the actual order of the court was made.
Mr Justice O'Neill stated that for reasons which he would go into, he was satisfied that s.4(8A) of the Criminal Justice Act 1984 did not apply. He stated that he must be mindful of the fact that he was dealing with criminal statutes that have to be construed strictly. What that meant was that the language of the statute must be given its natural and ordinary meaning and that a purposive approach was not appropriate.
Section 4(8A) was inserted into the Criminal Justice Act 1984 by s.2 of the Criminal Justice (Miscellaneous Provisions) Act 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 subsection (8) of the following subsection:
"(8A) Where a person is detained pursuant to subsection (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 a period of detention permitted by this section."
Then, and this was of significance, in subparagraph (d) it goes on to provide as follows:
"By the substitution in subsection (9) of 'subsection (6), (8) or (8A)' for 'subsection (6) or (8)'."
Section 9 of the Criminal Justice Act 1984 is in the following terms:
"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."
Mr Justice O'Neill stated that of course what was clearly missing from the amendment was a reference to the inclusion in s.9 of the provisions of section 4(8A). That absence became quite crucial when one had regard to the fact that in another part of the Act there was a reference to the inclusion of section 4(8A), i.e. in section 4(9). Subsection 4(9) of the Criminal Justice Act 1984, is in the following terms:
"To avoid doubt it is hereby declared that a person who is being detained pursuant to subsection (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 that 12 hours from the time of his arrest, not including any period which is to be excluded under subsection (6) or (8) in reckoning a period of detention."
In Mr Justice O'Neill's view, what was quite significant was that section 2.(d) of the Criminal Justice (Miscellaneous Provisions) Act 1997 amended section 4.(9) of the Criminal Justice Act 1984 by including an express reference to subsection (8A), whereas the provisions of subsection (8A) are not included for the purposes of an amendment of section 9 of that Act. That was a very significant and express omission which the court could not ignore and Mr Justice O'Neill stated that he was compelled to the view that subsection (8A) was not imported into section 9 of the Criminal Justice Act 1984 so as to affect a detention under section 30 of the Offences Against the State Act 1939.
Mr Justice O'Neill stated that he was thus satisfied that both in fact and in law the lawful periods of detentions expired at 10.55pm on Tuesday, March 7th, 2006.
Mr Justice O'Neill then considered what effect this had on the order made by the district judge. Could it be said, as was urged by counsel for the respondent, that the illegality of the detention between 10.55pm and 11.20pm was cured by the subsequent order made at 11.20pm? In Mr Justice O'Neill's view, it was not a question of curing the illegality of the detention. From 10.55pm onwards, the applicant was, or ought to have been, free to go. The real effect of the ending of lawful detention at 10.55pm was that the necessary jurisdictional basis for the granting of the warrant had gone.
It is a necessary prerequisite for the exercise by the District Court of its jurisdiction to grant an extension pursuant to s.30(4A) of the Offences Against the State Act 1939 that there is a continuing lawful detention pursuant to s.30(3). If that was not there then the suspect is or ought to be at liberty and could not 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 the applicant, and specifically the jurisdiction to extend detention pursuant to s.30(4A). Because of this jurisdictional void, the illegality of the detention after 10.55pm on the evening of Tuesday 7 March could not be cured by the order of the District Court at 11.20pm and hence in the view of Mr Justice O'Neill the continuing detention of the applicant was unlawful and he therefore ordered the release of the applicant.
Solicitors: Ferrys Solicitors (Dublin) for the applicant; Chief State Solicitor for the respondent
Kieran O'Callaghan, barrister
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