Shane Dunne (applicant) v The Director of Public Prosecutions (respondent).

Judical Review - Warrant for arrest Kelay in execution - Alleged offence committed in June 1992 - Warrant executed in November 1994 - Gardai searched applicant's family home twice in interim - Gardai told by applicant's father that applicant not residing there - Whether a delay unreasonable and unconscionable - Whether applicant prejudiced - nature of warrant for arrest - Whether warrant is a mandatory command to Gardai to arrest a person.

The High Court (before Mr Justice Carney) judgment delivered 6 June 1996.

AN offence was allegedly committed in June 1992 but a warrant for the arrest of the accused man was not executed until November 1994. In the interim period the Gardai had attempted to execute a warrant on two occasions at the family home of the applicant but had failed to locate him. However, the delay was not unreasonable nor constitutionally unfair as there was no prejudice to the applicant and the Gardai had made reasonable efforts to execute the warrant.

Mr Justice Carney, in the High Court, so held in dismissing an application for an order of prohibition seeking to prevent the trial of the applicant on criminal charges on the grounds of delay.

Mary Ellen Ring BL for the applicant Adrienne Egan BL for the respondent.

MR JUSTICE CARNEY said that an incident occurred on 23 June 1992 in which the applicant allegedly assaulted Detective Garda Minnock and another garda. A file was prepared and on 29 July 1992 the Director of Public Prosecutions directed that the applicant should be prosecuted for a breach of section 2 of the Criminal Damage Act 1991.

Detective Garda Minnock swore an information in consequence of which a warrant was issued from the District Court for the arrest of the applicant for the purposes of bringing him before the District Court. Within two, weeks of the issue of the warrant Detective Garda Minnock sought to execute the warrant at the applicant's family home. The applicant's father told the Gardai that the applicant did not live at the family home and was living else a where with his girlfriend. The Gardai searched the house and were satisfied that the applicant was not residing there.

Some weeks later the Gardai again searched the family home seeking to execute the warrant but again the applicant was not there.

Mr Justice Carney said that, there were two reasonably, prompt efforts to execute the warrants and further visits to the applicant's family home would have been pointless.

Thereafter, Detective Garda Minnock said that he remained on the lookout for the applicant and saw him on 20 October 1994 when the applicant was appearing in Court No 6 in the Bridewell. The garda did not have the warrant in his possession that day and so he noted the remand date of 3 November 1994 and he executed the warrant on that date and the applicant was charged.

On 23 January 1995 the applicant was given leave to apply for an order of prohibition by way of judicial review in respect of the said prosecution on the grounds that the respondent had failed to comply with the principles of natural justice and had failed execute the arrest warrants within a reasonable time.

The applicant's case was that such delay was unconscionable and excessive as he contended that he was living at his family, home since June 1992 and had appeared before the District Court during the currency of the warrant on at least 25 occasions.

The respondent contended that the Gardai took all reasonable steps to execute the warrant and even if the applicant was residing at the family home, the misrepresentations of his father led the Gardai to reasonably conclude that he was not.

Considering the nature of a warrant of apprehension, Mr Justice Carney said that it was a command to the Gardai by a court to bring a named person before that court and it did not merely vest a discretion in the Gardai to apprehend the person named but was a command to not immediately. Under thee Disc strict Court Rules a warrant of apprehension is directed by a District Judge to a (Garda Superintendent or Inspector who delegates its execution to another member of the Gardai.

Mr Justice Carney said that on more than one occasion he had formed the view that the Gardai did not have a full appreciation of the mandatory duty they are under to execute warrants. It had seemed to Mr Justice Carney that from time to time the Gardai have waited for the wanted person to gratuitously fall into their laps by, for example, being arrested in relation to a further crime rather than taking any active steps to find him. In this regard Mr Justice Carney said that a similar view was taken by Mr Justice Barron in State (Flynn)

The Governor of Mountjoy Prison (unreported, High Court, 6 May 1987).

Mr Justice Carney said that members of the Gardai must be accountable to the court for the prompt execution of warrants issued to them and in default of a prisoner being expeditiously produced there must be an explanation of what steps were taken to execute the warrant. However, the issue of a warrant need not trigger a national manhunt.

Having regard to the evidence, Mr Justice Carney said that the applicant was not prejudiced by the delay. A search was carried out for him on two occasions and the applicant admitted in his affidavit that he was in touch with family litigation taking place. Mr Justice Carney said he was entitled to draw the inference that he was lying low and the only person aggrieved by the delay in executing the warrant was the District Judge whose command had not been given, effect to.

Mr Justice Carney said that the steps taken by the Gardai to execute the warrant were reasonable and the community would not be well served if a disproportionate amount of Garda time was devoted to the game of ducks and drakes the applicant and his father were playing to the detriment of other police work.

Mr Justice Carney noted that in the future there would be a computerised system whereby the appearance of the applicant in court would trigger the activation of any warrant outstanding against him. However, the absence of such a system did not violate the applicant's constitutional or legal rights.

Accordingly, the application was dismissed.

Solicitors Garrett Sheehan & Co (Dublin) for the applicant Chief State Solicitor for the respondent.