High Court of Ireland Decisions

1. In these judicial review proceedings, the Applicant, who is the Director of Public Prosecutions, seeks orders of certiorari to quash orders made by the Respondent, District Judge Early, on 18th and 20th November, 1997 in relation to a prosecution of the five Notice Parties, Patrick Ralph, Maurice O'Riordan, Christopher Burke, Eugene Kelly and Michael Maguire, on charges pursuant to the Misuse of Drugs Act, 1977. By these orders, the Respondent District Judge on 18th November, 1997 discharged the five Notice Parties from custody and on 20th November, 1997 discharged the first, second and third named Notice Parties from custody.

2. The Applicant also seeks an order of mandamus compelling the Respondent to charge or permit the charging of all or any of the Notice Parties with specified offences under the Misuse of Drugs Acts, 1977 to 1984. Statements of opposition have been filed on behalf of the first, second and third named Notice Parties. Each of these Notice Parties was fully represented in Court by solicitor and by Senior and Junior Counsel in the hearing before me.

3. The District Judge, having been served with the proceedings, did not file a statement of opposition and took no part in the proceedings. Despite the best efforts of the Gardaí on at least two occasions, it proved impossible to serve the fourth and fifth named Notice Parties with the proceedings, and they therefore took no part in them.

4. The factual background to these proceedings is set out in the affidavit of Claire Loftus, a solicitor in the Chief State Solicitor's office. This affidavit was strongly criticised by Counsel on behalf of the three Notice Parties, and in particular by Counsel on behalf of the first named Notice Party. It was criticised on the grounds that, particularly in the first part of the affidavit, it contained a considerable amount of hearsay. Whereas hearsay is permissible to an extent in an affidavit for the purpose of ex parte application for leave to issue judicial review proceedings, it is contrary to the provisions of the Superior Court Rules in the case of affidavits to be used in a plenary hearing. There is some basis for the criticism of Ms. Loftus' affidavit. I accepted this during the course of the hearing, particularly as regards the first part of the affidavit. However, I would also have to accept that there was no actual challenge, either in the statements of opposition or during the hearing, to the facts as set out in Ms. Loftus' affidavit. Nor was there any suggestion that the events described therein did not occur.

5. On 13th November, 1997, the Gardaí discovered some 300 kg of cannabis resin at a house in Tallaght. Subsequently, the first, second and third named Notice Parties were arrested under section 25 of the Misuse of Drugs Acts, 1977 to 1984 for offences under section 15 of the 1977 Act. Some short time later, the fourth and fifth named Notice Parties were arrested nearby. It is alleged that they had a quantity of cannabis in the boot of the car in which they were travelling. All five Notice Parties were detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996. I will deal with the provisions of that Act later in this judgment.

6. They were detained under section 2 of the 1996 Act for investigation of the alleged offences. They were first held for the six hour period which is permitted under section 2(2)(a) of the Act, and subsequently, on the direction of Chief Superintendent Carty, for a further eighteen hour period under section 2(2)(b) of the Act. Again, on 14th November (the following day), under the direction of Chief Superintendent Carty, they were held for a further twenty-four hour period under section 2(2)(c) for the investigation of the offences. This, under the scheme of the Act, completed the amount of time that they could be held by the direction of a police officer not below the rank of Chief Superintendent.

7. At 6.30 p.m. on 15th November, 1997, an application was made to the District Court for a warrant allowing for a further seventy-two hour detention period under section 2(2)(g)(i) of the Act following on the forty-eight hours for which they had been held since their arrest. The application was made to District Judge Desmond Windle. District Judge Windle apparently considered that the matter lay within his jurisdiction and proceeded to deal with it. He made orders issuing the warrants required to allow the parties to be held for a further seventy-two hour period.

8. It is clear from the definition section of the Criminal Justice (Drug Trafficking) Act, 1996 (section 1) that not all District Judges have the jurisdiction to issue these warrants, as the definition of Judge of the District Court is given as: " the President of the District Court or any other Judge of the District Court standing nominated for the time being for the purposes of this Act by the President of the District Court ".

9. It appears that District Judge Windle either was unaware that he had to be nominated or considered that he was in fact nominated for the purposes of the Act.

10. On 18th November, doubts arose among the Gardaí themselves as to whether in fact District Judge Windle was a nominated District Judge. On investigation, it transpired that apart from the President of the District Court himself, only District Judge Thelma King was nominated for the purpose of issuing the relevant warrants in the Dublin Metropolitan Area. When this was discovered, it became clear that the warrant holding the five Notice Parties was invalid and they were all released.

11. It appears to me somewhat strange that a situation was permitted to arise when neither the Gardaí dealing with drugs offences nor the District Judge himself (and presumably other District Judges as well) were kept informed as to who was nominated to issue the warrants necessary under the 1996 Act. However, this is not a matter which arises for decision before this Court in these proceedings.

12. The Director of Public Prosecutions then directed that all five Notice Parties were to be re-arrested pursuant to section 25 of the Misuse of Drugs Act, 1977 which section permits an arrest without a warrant. They were to be charged and brought before the Court in the normal way whereupon their cases would be dealt with by the District Court and processed under the Criminal Procedure Act, 1967.

13. The five Notice Parties were in fact re-arrested and brought before District Judge Early on 18th November. Submissions were made by solicitors on behalf of at least some of the Notice Parties that re-arrest was only permissible under section 4(1) of the Criminal Justice (Drug Trafficking) Act, 1996. Section 4(1) required that new information as to the parties suspected participation in the relevant offence had to be provided to the Court before the parties could be re-arrested for the purpose of further detention. Such re-arrest could only take place under the authority of a warrant issued by the Court. Submissions were apparently made by Detective Inspector Sutton that the re-arrest was not under section 4(1) but under section 4(5) which provided for arrest and immediate charge. District Judge Early accepted the submissions of the solicitors for the Notice Parties. Apparently, they were all released by five o'clock on that day.

14. The Gardaí then decided to seek ordinary District Court warrants to re-arrest the five Notice Parties. Since District Judge Early was dealing with the matter, they went to his house in Carlow on the evening of 18th November to ask him to issue warrants for the arrest of the five Notice Parties. In view of the attitude he had taken in regard to section 4(1) of the 1996 Act, he refused to issue the warrants.

15. On the following day, 19th November, application was made to District Judge Thelma King for the issue of warrants to re-arrest the Notice Parties. After some consideration, District Judge King issued the relevant warrants. On 20th November, the first, second and third named Notice Parties were re-arrested. It proved impossible to find the fourth and fifth named Notice Parties. The three arrested persons were brought before the Court, before District Judge Early. Evidence of arrest, charge and caution was given in each case. He remanded the second and third named Notice Parties in custody. Subsequently, Counsel for Mr. Ralph, the first named Notice Party, arrived at the District Court and made further submissions with regard to section 4(1) of the 1996 Act, which he argued overrode section 4(5). Ms. Loftus' solicitor, on behalf of the Chief State Solicitor's office and the Director of Public Prosecutions, made further submissions with regard to section 4(5) and opened case law in regard to the jurisdiction of the District Judge in general. However, the District Judge accepted the arguments of Counsel that the parties could only be re-arrested pursuant to section 4(1) of the Act and that this subsection overrode section 4(5). He discharged Mr. Ralph, the first named Notice Party, from custody. At a later stage, on the application of their Counsel, he also discharged the two other Notice Parties who had earlier been before the Court on the ground that their cases were identical to that of Mr. Ralph. The form of the order which the District Judge made in each case was:-

16. On 21st November, Counsel for the Director of Public Prosecutions made an ex parte application in this Court for leave to issue and serve the present judicial review proceedings. The return date was fixed for 2.00 p.m. on Monday 24th November. At that stage, Counsel for the three Notice Parties made a number of submissions and also sought an adjournment to allow time to prepare their cases. The proceedings were adjourned to Thursday 27th November, 1997 and were heard before me on that day and the following day.

17. Counsel for the Director of Public Prosecutions made thorough submissions with regard to the Criminal Justice (Drug Trafficking) Act, 1996 and its interpretation. He also made submissions concerning the jurisdiction of the District Court in respect of persons brought before it where charges were made against them. The three Senior Counsel appearing for the three Notice Parties who were represented in Court did not in fact make any submissions in support of District Judge Early's interpretation of section 4 of the 1996 Act. However, they made various submissions in opposition to the making of the orders of certiorari and mandamus. Mr. Gaffney, on behalf of the first named Notice Party, made a submission in regard to the general jurisdiction of the District Judge and suggested that the District Judge's decision may well have been affected by the fact that he considered that the Gardaí were acting mala fide in arresting and re-arresting the Notice Parties. The other Counsel argued that, while the District Judge may have been in error, his error was made within jurisdiction and therefore was not open to judicial review. All three Counsel also submitted that I should use the discretion which is inherent in judicial review proceedings to refuse the orders sought by the Director of Public Prosecutions. Mr. White, Senior Counsel for Mr. Burke, candidly acknowledged that the District Judge's interpretation of the 1996 Act was in error and accepted that perhaps an order of mandamus lay but was opposed to the making of orders of certiorari. He suggested, however, that it might be premature to make an order of mandamus at this stage.

18. While no submissions were made by Counsel for the Notice Parties in support of District Judge Early's interpretation of the Act, it nevertheless falls to this Court to consider the Act of 1996 and its interpretation. The long title to the Act is as follows:-

19. I have recited this long title because it is clear from its wording that this is not a statute which establishes and defines criminal offences and/or sets penalties for those criminal offences, as is the case with the Misuse of Drugs Acts, 1977 to 1984. The 1996 Act ranges over a number of areas, but a major feature is the extension of the power of the Gardaí to arrest and detain a suspect without charge for the purpose of investigating a drug trafficking offence. Whereas, under the Criminal Justice Act, 1984 a suspected person may be held without charge for investigation for a maximum period of twelve hours, the 1996 Act permits a much extended period of detention reaching a maximum total of seven days.

20. This matter of detention for the investigation of offences is dealt with in section 2 of the Act. Section 2(1)(a) provides:-

21. Subsection (2) sets out the periods of time during which a person may be detained in the Garda station for investigation of an alleged offence. The first period is a period of six hours and then, on the direction of a person not below the rank of Chief Superintendent, there may be a further detention of eighteen hours. Again, on the direction of a Garda of similar rank, the detention may be extended for a further twenty-four hours. Once that forty-eight hours has elapsed, there is no further possibility of holding a person simply on the decision of a high ranking officer of the Garda Siochana. At that stage, a member of the Garda Siochana not below the rank of Chief Superintendent must apply to the District Court for a warrant authorising a further seventy-two hours detention. If that is done, the District Judge must be satisfied on the evidence of the Gardaí that this further detention is necessary for the proper investigation of the offence concerned. Again, there may be a repeat of this procedure to give a further forty-eight hours, giving a total of not more than one hundred and sixty-eight hours. During all of this period the position is that if it becomes clear that there are no longer reasonable grounds for believing that the detention of the detained person is necessary for the proper investigation of the offence, the detained person shall, unless he or she is charged, be released from custody forthwith unless subsection (6) of Section 2 is applicable. There are quite a number of other safeguards contained in the section in regard to the holding of a person in detention in this way. Such safeguards are clearly necessary as this is a very considerable power going well beyond any power of detention that is contained in the normal criminal law. Obviously, the necessity to apply to the District Court for a warrant for further detention is also a safeguard to prevent the possible abuse of a citizen who has been detained for investigation.

22. The section goes on to provide for two six hour periods of detention, an initial six hour period and a further six hour period where necessary and where so directed by an officer of the Garda Siochana not below the rank of Superintendent. As can be seen, this is a much shorter period of detention than that provided for under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996, but it is nevertheless parallel in type and purpose to that detention.

23. As can be seen, these provisions are very similar to the provisions in section 4 of the 1996 Act and are parallel to them. In both cases, the holding of someone in detention for investigation for an offence, which is an infringement of the right to liberty of a citizen, can only be carried out in serious circumstances. In addition to the safeguards that I have mentioned, there are quite a number of other safeguards against abuse of the power of detention provided for in both statutes. The main safeguard, which is contained both in section 10 of the 1984 Act and section 4 of the 1996 Act, is a safeguard against repeated detention by the Gardaí on the same offence without any new information having come to light. However, this is different from the situation which can arise where a person has been released from detention under section 4 of the 1984 Act or section 2 of the 1996 Act and at a later stage a decision is made by the Director of Public Prosecutions or by the Gardaí to charge that person with an actual offence. Section 10(2) of the 1984 Act and section 4(5) of the 1996 Act permit a further arrest for this purpose and for this purpose only. It is essential to distinguish carefully and clearly between arrest for the purposes of detention for investigation and arrest for the purposes of charging the alleged offender, of bringing him or her before the Court and of initiating the procedures under the Criminal Procedure Act, 1967 which eventually will lead to his or her trial.

24. In this case, the Notice Parties had to be released because the order made by District Judge Windle was clearly invalid. One can compare it with the situation which arose previously when it was discovered that the orders of the Special Criminal Court remanding various persons in custody were found to be invalid because one of the Judges involved was no longer a Judge of the Special Criminal Court.

25. Subsequent to the release of the five Notice Parties, the Gardaí believed that they had enough evidence to charge them with offences under the Misuse of Drugs Act, 1977. They first arrested them on 18th November under section 25 of that Act, which permits arrest without warrant. Later, on 20th November, they arrested the first three Notice Parties pursuant to the warrants issued by Judge King. It was suggested that the District Judge believed that the Gardaí were acting mala fide in doing this. There was no evidence of any kind before this Court either that the Gardaí were acting mala fide or that the District Judge thought that they were acting mala fide. There was in fact nothing wrong with re-arresting the Notice Parties provided that they were immediately charged and brought before the Court. The situation where persons were found to be held in custody under an invalid order, were released, and were subsequently re-arrested has been considered and approved both by this Court and by the Supreme Court - see, for example, the judgment of the learned Geoghegan J. in Hegarty -v- The Governor of Limerick Prison (unreported 26th February, 1997). In Quinlivan -v- The Governor of Portlaoise Prison (unreported 7th November, 1997), the judgment of the Supreme Court, given by Barron J., upheld the same procedure. In that judgment, at page 14 of the report, the learned Judge stated:-

26. This judgment was given on 7th November, 1997, only a few days before the matter of the five Notice Parties came before District Judge Early. The judgment was attended with considerable publicity and I have no doubt that District Judge Early was aware of the decision. The evidence is that his decision was not based on the wrongfulness of re-arrest as such but on his particular interpretation of section 4 of the 1996 Act.

27. Having surveyed various statutory provisions outlined above and their purpose, I consider that the interpretation of section 4 of the 1996 Act adopted by the learned District Judge was in fact incorrect. The re-arrest provided for under section 4(1) is a re-arrest for further detention and questioning, and must be justified by new information. The arrest provided for in section 4(5) is of a completely different nature, being a normal arrest for the purpose of charging the person arrested before the District Court, of bringing the procedures of the Criminal Procedures Act, 1967 into being and eventually of bringing the accused person to trial.

28. The next question that arises is whether the error made by the District Judge was within him jurisdiction or was not. It is perfectly possible for a District Judge to misinterpret a statute within the course of a trial and for that misinterpretation or other error to be within his jurisdiction, and therefore not amenable to judicial review. Here, however, the District Judge refused to exercise the basic jurisdiction of the District Court in criminal proceedings where the Notice Parties had been brought before the Court and a complaint made through the production of charge sheets and evidence of the fact that they had been charged with the offences. The Notice Parties were before the Court and the District Judge had jurisdiction to deal with the matter - see Attorney General (McDonnell) -v- Higgins [1964] I.R. 374 at 391 and State (Lynch) -v- Ballagh [1986] I.R. 203. The learned Judge based his said refusal on his incorrect interpretation of section 4 of the Criminal Justice (Drug Trafficking) Act, 1996.

29. It is also established law that it is not the task of the District Court to decide whether a person is held in a legal custody or not; this is the task solely of the High Court. In Keating -v- The Governor of Mountjoy Prison [1991] 1 I.R. 61, the Supreme Court (Finlay C.J., McCarthy J., O'Flaherty J.) held, as is stated in the headnote to the case that:-

30. In his judgment, the learned Mr. Justice McCarthy allowed for a limited situation where a District Judge could discharge an accused from custody. At page 65 of the report, he stated:-

31. It does not appear to me that the procedure which was adopted in the present case, which was in accordance with section 4 of the 1996 Act, was either an outrage or an affront to the constitutional role of the Court as described by the learned Mr. Justice McCarthy in his judgment. I therefore conclude that the error which was made by District Judge Early was not within his jurisdiction, and therefore is amenable to judicial review.

32. The final question which has to be decided is whether, given the discretion inherent in the judicial review procedure, I should refuse to make the orders sought.

33. This issue in regard to the interpretation of the 1996 Act is a publicly important issue which may very well effect quite a number of other people besides the Notice Parties in the present case.

34. Mr. Sammon, on behalf of Mr. O'Riordan, suggests that in my discretion I should refuse to make the orders because the case has been put together in a careless and confused manner by the State. I fully acknowledge that there were certain weaknesses in the presentation of the evidence and in the preparation of the case by the State. Perhaps not unexpectedly there was an element of over-hastiness in endeavouring to get the proceedings on as fast as possible. It does not appear to me however that the weaknesses in the way in which the State's case was brought forward are sufficient to offset the desirability of quashing these orders which were made erroneously.

35. It was also suggested to me that it would have been preferable for the State to proceed by way of Case Stated, either under the Summary Jurisdiction Act, 1857 as extended or under section 52 of the Court (Supplementary Provisions) Act, 1961. Under the 1857 Act procedure (appeal by way of Case Stated), the proceedings must first be heard and determined. It does not appear to me that in this case proceedings have been heard and determined. In regard to the Consultative Case Stated procedure under the 1961 Act, the case must be stated by the District Judge in the course of the proceedings, whereas in the present case proceedings never really got under way. It seems to me doubtful that either Case Stated procedure would be available to the State in this case but it is not necessary for me to make a decision on this point. It was not a point that was pleaded in the statements of opposition and it was basically up to the Applicant Director of Public Prosecutions to make the choice as to what form of proceedings he should take.

36. As I have said, there were perhaps undesirable features in the State's conduct of the proceedings but, given the importance of the legal question arising on the interpretation of section 4 of the 1996 Act, I do not consider it desirable to use my discretion to refuse the primary order sought. I will therefore make orders of certiorari in regard to the orders made by the District Judge both on the 18th November and on the 20th November, 1997 in accordance with paragraphs (D)(1) and (D)(2) of the statement grounding the application for judicial review. I would ask Counsel to address me on what course should be taken in regard to the orders effecting the fourth and fifth named Notice Parties who were not represented in Court before me.

37. With regard to the order of mandamus, I would agree with the submission of Mr. White that this appears to be somewhat premature. The parties can be re-arrested; there has been no effective judicial hearing of the allegations against them. There has been no discharge on the merits of the case, and there is no possibility of there being able to plead autrefois acquit. I feel sure that if they are arrested again, charged and brought before the Court in the normal manner, their cases will be properly processed by whatever District Judge they come before. I do not think that an order of mandamus is necessary at this point and I accordingly refuse to make that order.

38. Your Lordship is making orders of certiorari in relation to all the orders made by District Judge Early on 18th and 20th November.

39. Mrs. Justice McGuinness:

40. Yes. With regard to the fourth and fifth named Notice Parties, they were not before the Court. I do not know whether you wish to make any submission about them, Mr. McGuinness?

41. I would find it difficult to see how they could escape the consequences of the ruling of the judgment.

42. Mrs. Justice McGuinness:

43. That is probably true; if I am to make orders affecting the persons who remained and in all fairness were re-arrested and did not make efforts to escape, it would be quite unfair not to make similar orders affecting the persons who have so far evaded the service of the warrants that were issued and also of these proceedings. The orders of 18th November affecting the fourth and fifth named Notice Parties must also be quashed.