High Court of Ireland Decisions

1. Mr. White, counsel for the accused, has raised an issue of law regarding counts 1, 2 and 3 in the Indictment. They relate to respectively the false imprisonment of James Lacey, Joan Lacey and Suzanne Lacey which are stated to be "contrary to Common Law and as provided for by Section 11 of the Criminal Law Act, 1976" (the 1976 Act). It is submitted that the offence charge is one at common law only and that Section 11 deals with penalty and does not create a statutory offence. The significance of this is that a statutory offence of false imprisonment has been created by Section 15 of the Non-Fatal Offences Against the Person Act, 1997 (the 1997 Act), which also abolishes the prior common law offence. There is no provision in that Act or in the Interpretation Acts saving prosecution of such offences at common law allegedly committed prior to the date when the 1997 Act came into force (19th August of this year) and which come to trial after that date. Mr. O'Higgins, counsel for the prosecution, accepts that such a lacuna exists, but he submits that Section 11 of the 1976 Act creates a statutory offence of false imprisonment which has not been abolished by the 1997 Act. Mr. White concedes that if there is a statutory offence of false imprisonment created by Section 11 in addition to that at common law, then the accused may be prosecuted and tried for the statutory offence therein created after the 1997 Act came into operation.

2. In the opinion of the Court the foregoing provision does not create a statutory offence. What it does is to categorise the common law offences of kidnapping and false imprisonment as being felonies and it provides also the maximum penalty which may be imposed on a person guilty of such offences. Section 11 is not a provision similar to Section 47 of the Offences Against the Person Act, 1861 which does create a statutory offence in addition to a similar offence at common law - see the judgment of O'Dalaigh C.J. in The State (O) -v- O'Brien [1971] I.R. 42 at pp.50 and 51. It follows, therefore, that Mr. White's submission is well-founded that it is not possible for the Court to consider counts 1, 2 and 3 in the Indictment as the offences charged have been abolished by the 1997 Act.

3. The court regards it as surprising and most unfortunate that those having responsibility for the drafting and enactment of the 1997 Act should have made an obvious error of such a serious nature.

4. The remaining counts in the Indictment charge the accused with respectively robbery at the National Irish Bank, College Green, Dublin on 2nd November, 1993; the related offence of demanding with menaces and possession of a firearm at Blackrock, Dublin on the same date with intent to commit the indictable offence of false imprisonment.

5. Having considered the evidence, the court is satisfied beyond reasonable doubt as to the following matters:-

6. Mr. James Lacey was, in November, 1993 the chief executive of the National Irish Bank, a "high street" bank, which has its principal place of business in College Green and its administrative headquarters at Wilton Place, Dublin. Mr. Lacey then resided with his wife and children in a dwellinghouse at Blackrock, County Dublin.

7. At or about 1.30 a.m. on the morning of the 2nd November, 1993, Mr. Lacey and his wife arrived home by car from a business engagement in the midlands. They had employed a baby-sitter, a young lady called Tanya Waters, to mind their children, Suzanne aged 14 years; Robert aged 13 years; Louise aged 10 years and Sarah Jane aged 6 years. On their arrival at the house, Mr. and Mrs. Lacey were apprehended by an armed gang which appears to have comprised about seven men. Mr. Lacey was struck on the head with a firearm. He, his wife and Ms. Waters were forced to lie down on the drawing-room floor. He was handcuffed. The children were woken and brought downstairs. Later, by direction of the gang, they were brought back to their bedrooms by Ms. Waters, dressed and brought downstairs again. Soon afterwards the children, Mrs. Lacey and Ms. Waters were taken to another living-room on the ground floor where they were tied up with sheets and photographed by a polaroid camera which was then destroyed. Meanwhile, Mr. Lacey was forced to remain in the drawing-room. He did not see his children or the baby-sitter again that night. Mrs. Lacey was told by one of the gang that she would be brought to where her husband was being held and that she was to inform him that he must do everything he was told by the gang and that his son, Robert, had been shot in the hand - by inference as a warning about what the gang would do if Mr. Lacey did not carry out their instructions. She did as she was told. In fact Robert had not been shot. Mrs. Lacey, Ms. Waters and the children were taken away by the gang when they left the house at about 6.00 a.m.. They were brought to a secluded stable at Blackhorse Avenue where they were gagged, tied up and threatened that they would be knee-capped if anything went wrong. They were found by garda officers late in the evening of 2nd November.

8. While the family were being detained in their home, Mr. Lacey was told by one of the gang that they would be bringing a man to the house and that he (Lacey) was to accompany this man in a van to the National Irish Bank, College Green, in the morning. It was intimated to him that the gang was aware that there was a "secret room" in the bank which was full of cash. This money was to be loaded into the van. It was further intimated that the gang was aware of certain details about himself; the manager at College Green, Mr. Keenan, and another member of the staff, Mr. Boner. This included information about their families and where they lived.

9. A man was brought into the room where Mr. Lacey was being detained and was put lying on the floor beside him. He was hooded and his feet were tied; he was unshaven and filthy. Soon after his arrival, the man's hood was removed. Mr. Lacey was told that this was the person who would accompany him to the bank. At that stage the man was taken upstairs by members of the gang and he reappeared shortly afterwards cleaned up and clad in Mr. Lacey's clothes. This man was the accused. While the latter was upstairs Mrs. Lacey was brought into the room where her husband was detained. She had a pillowcase over her face. She lifted it up and informed him that she was being taken away. At or about that time and before the accused returned to the room, Mr. Lacey was handed by a gang member polaroid photos of his wife, Ms. Waters and each of the children. He was told that if he wanted to see them again alive he was to follow the instructions he had been given.

10. When the accused returned to the room he sat beside Mr. Lacey. He, the accused, was given further instructions relating to the robbery. He was given a pair of red coloured spectacles which he was told to wear as an indication that events were going according to plan. The leader of the gang told Mr. Lacey that the accused would drive the van to the bank and park next door to the loading-bay in St. Andrew Street. He was told that they were not to leave home before 10.00 a.m. and to arrive at the bank by 11.00 a.m.. The operation there was to conclude at 1.00 o'clock. It was to be carried out as quickly as possible and Mr. Lacey was to remove "walkie-talkies" from the security men.

11. After the gang had gone, Mr. Lacey queried the accused as to his identity and where he had come from. He responded that the gang had told him not to say who he was and he indicated only that his first name was "Joe". He also stated that he had been kidnapped and held for two weeks prior to that time. He said that he had been brought to the Lacey house by members of the gang; that they were dangerous people and that their instructions must be followed. He said that he also had instructions not to tell Mr. Lacey where they were to collect the van and was not to release him until 7.00 a.m.. At or about 8.00 a.m. he did so and Mr. Lacey then made tea for both of them. In course of a further conversation, the accused showed Mr. Lacey polaroid pictures of his sons and mother-in-law. He said that they were being held captive by the gang and that he feared for their safety. He said that he had been told by the gang that his family would be killed if he did not do what he was told. He stated that he had also been informed that one of his sons has been shot in the hand. He then reiterated that "these men are deadly serious". Sometime later the accused told Mr. Lacey that the van was parked at Merrion Church opposite St. Vincent's Hospital. He then explained that he had been apprehended by the gang at a health club in Crumlin; held in awful circumstances and he again stated his belief that the gang were holding his children.

12. Having left the house at 10.00 a.m. in Mr. Lacey's car, he drove the accused to the car park in front of Merrion Church where the latter pointed out a green van which was discreetly parked near a wall. The keys were on the driver's seat as arranged by the gang. They got into the van and the accused told Mr. Lacey that he was not a very good driver and that he hoped he would be able to drive the vehicle. They drove out of the car park and turned right for the city. Mr. Lacey considered that the accused drove quite well except for a failure to change gears. He drove in a high gear.

13. On arrival at the bank, Mr. Lacey and the accused went to the private office of a witness, Mr. Eugene Keenan, the senior manager, and met him there. Mr. Lacey told the latter what had happened; that his wife and children had been taken away by the gang; that the accused was in the same situation as to his family and that the gang wanted all the cash which was stored in the bank. Both men showed Mr. Keenan polaroid photographs of their respective children which had been given to them by the gang. The accused reminded Mr. Lacey in Mr. Keenan's presence that he had promised to fill the van with money and that he should not go back on his word or his children would be injured. The accused informed Mr. Keenan that the gang knew that cash was kept in a "secret room" downstairs. He told the manager that the gang knew about him and he furnished biographical information including the name of the witness's wife; that he drove a Volvo car and that he was particularly close to his daughter. He also referred to Mr. Dermot Boner, another bank official, and stated that the Keenans and the Boners lived in the same locality and had holidayed together in the previous year. All of that information was true.

14. There was in fact a cash centre in the vault of the bank. Mr. Lacey told Mr. Keenan that they would have to give all the money in the bank, meaning what was in the cash centre. A sum of £233,000 in cash was brought to Mr. Keenan's office. The accused's reaction was that the amount was not enough. He again reminded Mr. Lacey of his promise and that he must keep his word. As a result of this a further £10,000 in notes was added. The entire was put into three plastic sacks which Mr. Keenan and the accused carried down to the loading-bay where the van was and they put them into the back of the vehicle. Mr. Keenan regarded the demeanour of the accused while in the bank as being quite relaxed. Mr. Lacey stated in evidence that before they set out from his house to collect the van, he got the impression that the accused was "extremely nervous". At about 9.40 a.m. he became anxious to get the money at the bank. Mr. Lacey then told him that he, the accused, would have to follow the letter of instruction which they had been given by the gang. He stated that he was not suspicious of the accused at any stage.

15. When the sacks were loaded into the van, the accused drove it out of the loading-bay and turned right. He left the premises at about 1.00 p.m.. Subsequently, he informed the police that he had instructions to follow a motorcyclist who would be wearing a helmet and a multi-coloured top. He carried out his instruction and, following the motorcyclist, finally arrived at a lane-way off Maxwell Road via a circuitous route. At that point he handed over the van to the motorcyclist who inspected the sacks of money and the accused was allowed to leave the scene on foot. Subsequently, on 9th/10th December, 1993 he furnished D Garda Coppinger and D Sergeant Melody with information regarding his activities on the day of the robbery from the time when he took possession of the van at Merrion Church. The accused had several interviews with officers on the team who were investigating the robbery and the kidnapping of the Lacey family. The information furnished by the accused to Garda Coppinger and Sergeant Melody was recorded in writing in question and answer form. It contains the following passage. At the conclusion of the interview the entire note was read over to the accused and he was invited to sign the document. He refused to do so but agreed that the content was correct:-

16. On the following morning the accused returned to Mr. Sheehan's office by appointment and was brought by him to Terenure Garda Station for the purpose of making a formal statement as to his part in the robbery at the National Irish Bank on 2nd November, 1993 and related matters together with his explanation for taking part in what had happened. The accused's statement was dictated by him and recorded by D Garda O'Brien in the presence of D Inspector McKenna and Mr. Sheehan. The latter intimated that his client would not provide any supplementary information. It appears that this was on the advice of Mr. Sheehan. The statement is in the following terms:-

17. The statement was duly signed by the accused and witnessed by D Garda O'Brien and D Inspector McKenna.

18. An incident took place on 18th January, 1994 where the accused lives at Priestfield Cottages, South Circular Road. He sustained a gunshot wound to his left leg involving the fleshy part of the calf muscle. There was a small entry wound about a quarter of an inch diameter and an exit wound which was a little larger. He was brought to St. James's Hospital and detained, though not seriously injured. Several national newspapers were contacted by someone as a result of which the accused was interviewed by journalists, including Mr. Brendan Farrelly of the Evening Herald. The accused told the latter that he had been shot by the gang as a punishment for not filling up the van with money as instructed.

19. The net issue for determination by the court is the credibility of the accused's explanation that he was coerced into participation in the robbery at the bank and that he, like Mr. Lacey, was an innocent victim who was forced to play his part in the robbery through fear for his own life and for the safety of his family who he believed had been kidnapped by the gang and one of whom he understood had been shot and wounded as an earnest of the reality of the threats which had been made to him. If the accused's explanation creates a reasonable doubt that it might be true, then he is entitled to an acquittal of the offences charged, even if the court has serious reservations about the veracity of his story.

20. In order to determine whether the accused's explanation of coercion is credible or not, it is necessary to look at the entire of the evidence and, if there are flaws in the accused's story, whether collectively they give the lie to his allegation of coercion and establish beyond reasonable doubt that his part in the robbery and related matters was as a volunteer in collaboration with the members of the kidnap gang.

21. There are six elements which have been established to the satisfaction of the court and which, taken in the round, lead to only one reasonable conclusion, i.e., that the accused's role in the robbery and related events was that of a volunteer; that his alleged kidnapping never took place and that he never had any cause for concern about the safety of his sons and mother-in-law as at all material times he was aware that they had not been kidnapped or harmed as alleged.

22. Mr. White has argued that his client, who did not give evidence, may have been affected by shock resulting from what he alleges had been done to him by the gang. This is not borne out by the facts. The court notes that the accused was sufficiently well orientated to realise immediately on being allowed to go free by the motorcyclist that he should consult his solicitor, Mr. Sheehan. On his way to the office of the latter the accused also took time to review his situation while sitting in a park; then while having refreshment at the Lantern bar and subsequently at the Liberty Bell bar while waiting for Mr. Sheehan. It is suggested that he may not have wished to contact Mrs. Bolger because of the fraught relationship between them. Even if they were on bad terms at that time, his alleged great anxiety for his sons probably would have transcended any such reluctance - particularly as the accused believed that one of his boys had been already shot as a warning and that Mrs. Bolger also had been kidnapped. The court notes that neither Mr. Eagar or Mr. Sheehan have been called to give evidence about the accused and whether either considered that he was in a state of shock when he called to their office on 2nd November. Furthermore, it was not suggested to Mr. Lacey or to Mr. Keenan that the accused was suffering from shock. His own observations and performance in the bank establish that he was in control of his faculties and was capable of rational behaviour. There is nothing to indicate any change in that situation from the time when the accused's part in the robbery had come to an end.

23. Taking into account all of the foregoing factors collectively, the court is satisfied beyond reasonable doubt that the accused's part in the bank robbery and related matters was as a voluntary collaborator with the others who perpetrated the crimes in question; that he was a member of the gang and that he was not coerced into participation in their activities as he has alleged. Accordingly, the court finds the accused guilty on counts 5, 6 and 7 in the Indictment.